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EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
THE ADA AMENDMENTS ACT OF 2008
And Related Discussions
Presented May 2014 MtkolmSMtU
DlbulltrictDittctor Mlami Oitukt tfloriU Pueno Rko US Vlbullrlbull lola I
US Equal Employment Opportunity Commission
The EEOC is the key civil rights agency responsible for enforcing federal laws that prohibit employment discrimination wwweeocgov
EEOC Mission Statement
Our mission is to address and eliminate discrimination in the employment through
bull outreach and education
bull compliance and or voluntary settlemcnr and where necessary
bull the rigorous enforcement of the fcdcrd civil righta employment Jaws through administrative and judicial actions
1
charges who
investigated filed-
I I
== w==-r -middot
T JiW1 _____T-ttl oAI __ _ -middot
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
Authority amp Role
bull The EEOC has the authoril) to investigate and Utigate of discrimination against employers are covered by the law
bull Our role in an investigation is to fairly and accurately assess the allegations in the charge and then make a finding
bull Most employment discrimination cases must be filed and at the EEOC before a lawsuit can be wiD be dismissed otherwise
EEOC National Statistics FY2012
Total Charge ofDiscrimi tion filed FY 2012 = 99412
Rae JJSil or JJ7 Sa JOJ56 305
Nadonal Orialn - 1083) oriO
llcUaion - )811 or W Color - 2fi62 or 2
RltUilarion 37836 lampl
Aac = 57 or 00 DiubWry 26)79 or 26Y
Equal Pay=1082 or IWo
GINA = 210 or OJ
EEOC National Statistics FY2012
Total Charges of Discrimination filed FY 2012 = 99412
Raa USll or JJne Sex = JOJ56 or l05yeno
Notional Oripn = 1083) or 109o
RcUJilon = J811 or 38
Color = 2662 or 2
Re111iadon = 37836 or 381
Aac= 7 or 230
Diubiliry 26l79 or 265 Equal Pay= 1082 or 11
GINA= 210 or oJ
ttlUij _ _ __ _ _tnoeef_
May 9 20 1 4
2
1bull
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
EEOC National Statistics FY2013
Total Charges of Dtscriminotion filed FY 2013 = 93727
c=) Races J6+1
Gmda111ll
-_____ Relalladon JO
+ 97 252 cbargeoreolved
+ 70 522 people obtained monetory and non-monecory beoelill duouah adminiouotive enforecment activitie (mediation voluntory oeldcmen11 amp conciliation efrom)
+ $37 21M in monetary bcndito obtalned throuah 17 600 mcril foetor rcsoluliono -11 private ICclor cnforcemcnl nconl
Source FYlOO EEOC Perfonnaoec and AccnuntabiUI)I Repon
Florida Trends FY 2013
The Miami District EEOC (Miami Tampa and SanJuan offices) received 7804 private sector discrimination charges
Miami 4 598
Tampa 2804
Sanjuan40 2
bull Monetary relief obtained from private sector enforcement efforts totaled S32 4 M
Florida CharJe Flllncs FY2013
1Ut10IIrln Cob
llcllal)n [qubulllhyen
QUIA
May 9 20 1 4
3
bullvwkplpCpound frrc qfunlawful
take PCQOlJZC nod nrzpmpdatc mnrdinl action discipline commensurate
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Your Obligations as the Employer
bull Make the discrimination harassment and retaliation
bull Promptly and confidentially inyestigatc complaints or discrimination harassment and retaliation
bull Where discrimination harassment and retaliation may have occuncd
(iewidt the offense)
TODAYS AGENDA
bull Ovorviltw of tholaws EEOC En forelt
bull EEOC Enfottltmcnt and Compbontlrocus
bull RKtntllmponant Cases
bull lntcrrby between ID A and tho ADA
bull lnterrbJ betwrm FMLh and the ADA
bull lntltrrbr bctwltm Workers Comprnsarion and tht ADA
bull Gtnt11e lnfonnarion Non-DiKrinunahOn Act (GINA
bull Health and Safety Concnns
bull Confodmtoaloty and Limil2h0ns on Modica Enms
bull Avaobble EEOC Resources to Assost Emplorltr Comploance bullmh the ADA
OVERVIEW
FEDERAL ENFORCEMENT OF
EMPLOYMENT ANTIshy
DISCRIMINATION
LAWS
May 9 201 4
4
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
What Employers Are Covered
bull Private Employers (15 or more employees) bull Educational Institutions bull Labor Organizations bull Joint LabormiddotManagement Apprenticeship
and Training Comminees (Tide VII amp ADA)
bull Employment Agencies Serving Covered Employers
bull State and Local Governments
Which Individuals are Protected
bull An employee
bull A temporary worker
bull A job applicant
bull A former employee
bull Undocumented workers
Employment Discrimination Laws
The EEOC enforce m number offederal laWll prohibiting employment di1crimination including
Title VII of the Civil Righcs Act of 1964 (fide VII) Age DiOltrimingtlion in Employment Act of 1967 (ADEll)
bull Equal Pbully Act of 1963 EPA) bull Lilly Lcdbcucr Fair Pgty Act of 009 bull Tide I amp V of the Americns vrh Diubilitics Act of 990
(ADA) ADA Amendments Act of 2008 (ADAAA)
bull Title II of the Generic lnformgtlion Nondiscrirninotoon Act of 2008(GINA)
bull Prcgnoncy Discriminorion Act of 1978
5
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Discrimination Can Occur in the FoUowing Scenarios
bull HireFire
bull Wages
bull PromotionDemolion
bull Harassment
bull Different Tenns and Conditions
bull Assignments Benefits Leave Training
bull Failure to Accommodate for Disability
bull Failure to Accommodate for Religion
Retaliation Prohibited by All Statutes
bull No Stand Alone Retaliation Statute
bull It is unlawful to penalize punish or deny an employment benefit because that penon opposed discrimination or participated in any way in tbe invebulltigation o( a charge
Retaliation
bull Example in the Disability Context-
A hotel room aucndant ccovcs a asonable accommodation which allows her to have a laundry auendant step into a room she has cleaned to collect ptles of uscd lmen Her supervisor subsequently move s her from her long standing room assignments and assign1 her to clean room and guest suites normally uscd by wcddmg auendees and which= known to req stgntficantly more cleaning
Proof nuy be by direct evidence (nuemcnu) or circumstantial evidence (eg ttnuna
May 9 20 1 4
6
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEO Complaint
and Investigation
Process
EEO Complaint and Investigation Processes
Three Different Processes
bull 1 Federal Sector Process
bull 2 Private Sector Process
bull 3 Public Sector Process
FEDERAL
SECTOR
PROCESS
7
Ucbull Color
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Federal Sector EEO Complaint Process
bull Regulations provide for the acceptance of complaints from
bull Current employees bull Fonner emplo)middotees bull Applicants for employment
Basis for Filing a Complaint of
Discrimination
Rdogion tgc(HO) National Origin Disability (MtmliPhysical) Sex (gender sexual hamsmcnl scxual ontnution) Reprisal
bullbullaaot---_tbullMd Dillwbullttorbullca bullbullpfDCftMd dn-IM EEOCbull runlurn (ot COpl-tof ow-_ Bd- Snel OWcoo(EOC Otdn No 001)dRtWMin29CFitrbullr1IU
Threshold Inquiry
When did the aUeged incident or action occur
bull Did it occur within the last 45 calendar days
What hann have you suffered
bull Must be specific
8
u
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Stages of an Federal Agency EEO Complaint
INFORMAL COMPLAINT STAGE Contact Agency EEO Office or Agent
liiJ Counoeling Sagc bull 30 d
bull Counsdmg bull Pact Flftdanc bull lnformalllnoW bull lOdopbull 1DRIMWOOft bull I( ADR ilbullciKt-d tlw prnod 11 lltrndcd to up to
lOUJ1 bull Nooce of Right to fbulllbull complgtnt th thbull
agmlty bull Compwn h IS dbullp to file fomul
compbmt
FEDERAL AGENCY EEO COMPLAINT PROCESS
Formal Stage
Acccp12bility Stogc
bull File fonnl complbnt th OE O
bull Accept DismiSS
bull Asstgn for In csttgtbullon
May 9 201 4
9
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
EEO COMPLAINT PROCESS
bull lnvcsligativc S11gc
bull Potential Methods aOn-Sut bRcqu to for
Producbon
cAffidgtgtto
d Vampdto confere-nce
bull Timcfnme -180 dafl (r ltbulltendo or amondnl)
EEO COMPLAINT PROCESS El crion Stage
bull Advisement of RghtJ Issued
bull CompiUnmt mgtkcs election - 30 doys
bull eEOC Heanng or bull FlmlltgenCJ Dtruion
Both drcisions cn br appralrd
Most Common Reasons For Dismissal
bull Time Frames
bull Initial EEO Contact bull 45 Calendar Ooys
bull Filing Fonnal Comphunts bull IS Calcndbullr Days after
rcccopt of Notocc of Right to File
10
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
continued bull Failure to State a Claim
bull Un3ble to show you 3re hanned by the m3tter complained of
bull fail to allege a protecrie bam of discnmin3non
Identical claim
bull Has already been brought before the Discrimin3non Complaint Process
bull Has bcen rtiscd in 3 negoti3tcd grievance procedure for most agencies
bull MSPB 3ppeal
PRIVATE
SECTOR
PROCESS
INTAKE
bull InquiryIntake Questionnaire (bring or mail
bull Letter or complaint (mail or in person) -No Attorney needed- Must be signed
bull EEOC may request more information
bull Statute of Limitation- 180 days unless State or Local Law extends to 300 days
bull Age Discrimination eCtended only if STATE law eCtends it
May 9 20 1 4
11
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Service to Employer
bull Vtthin 10 days notice and copy of charge sent to employer
bull Employer invited to send Statement of Position and sometime respond to EEOC Request for Information
bull EEOC has subpoena power
bull Some cases may be invited to mediation- Both must agree
Mediation
bull Mediation scheduled
bull Parties meet with mediator bull FirewaU exists
bull Tries to reach voluntary settlement
bull No determination of right or wrong- no cause determination made
bull lIediated settlement is an agreement reach by the parties but to which the EEOC is also a signer
bull Compliance may be enforced by the EEOC
Investigation
bull If not resolved by mediation assigned to investigator
bull Investigation may include
a On-Sire visits andor Interviews
b Requests for Information
c Fact finding conference
d Evidence Analysis
1 2
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Determination bull Based upon the evidence violation found or not
found
bull If no violation or at any srage if no juriroiction or if EEOC probably cannot reach determination case closed and Notice of Right to Sue i sued- NRTS may be requested after 90 days
bull If violation found conciliation is attempted
bull If no settlement Notice of Right to Sue Issued or EEOC decides to litigate
bull Reconsideration may be requ ted
FAIR EMPLOYMENT PRACTICE AGENCIES
bullWorkshare Agreement
bullSubstantial Weight Review
PUBLIC SECTOR
PROCESS
13
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
EEOC Public Sector Process
middotSame EEOC Intake Investigation and Cause Determination process
middotEEOC forwards its determination to the Department of Justice (DOJ) which issues the Notice of Right to Sue
bullLitigation of Public Sector Charges determined and conducted by DOJ
EEOC Public Sector Process
middotEEOCs Strategic Plan requires Internal and External Integration of Resources
bullCollaboration of efforts and resources by EEOC and DOJ regarding Public Sector Investigations
Other Partnerships
bullInternal and External Integration of Resources has also fostered EEOC collaboration on public and Private Sector maners with
middotDOL (OFCCP amp WampH)
bullFair Employment Practice Agencies
bullAnd others who arc a part of the multi-pronged national equal employment law enforcement effort
14
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
SYSTEMIC
INVESTIGATIONS
EEOC STRATEGIC FOCUS
Basis for Systemic Enforcement
Systemic cases can be brought under any of the statutes enforced by the EEOC Including ADAAA GINA and PDA
Strategic Plan to have Sustainable Impact Most effective way to reduce and deter discriminatory practices In the workplace
Systemic cases usually Involve
company-wide practices or policies
The EEOC may request and analyze
extensive electronic data and numerous
documents conduct statistical analyses and
interview witnesses and class members
1 5
D isparate
(directed targeted)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Two Types of Systemic Discrimination Cases
bull t Systemic Disparate Treaunent Cases
bull 2 Systemic Disparate Impact Cases
Treatment Cases
bull where the discrimination was Intentional or
bull Disparate treatment cases are the most common type of cases
Three Main Types of Systemic Disparate Treatment Cases
(1) discriminatory treatment In employment
decisions such as hiring promotion and
discharge
eg An employer refuses to hire or promote
people based on their disability
May 9 20 1 4
16
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Three Main Types of Systemic Disparate Treatment Cases
(2) discriminatory rules practices and
policies eg cases where an employer has a policy practice
or rule that on its face treats people In a protected
group differendy than others such as a rule that an
employee who is returning to work from a
Reasonabfe Accommodation leave of absence must
re-test to qualify to do a job
Three Main Types of Systemic Disparate Treatment Cases
(3) harassment
eg harassment based upon corporate or workplace culture or practice or which are codified in policies or practice
Examples of Disparate Treatment In Employment Decisions
bull a hotel managers statement that he does not hire disabled applicants because they miss too much rime off work
bull a companys statement to a temporary placement agency that it wants fit people for its office positions jobs
17
engtge complained
company VII
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Examples of Disparate Treatment in Employment Decisions
bull notations on employment application$ indicating the suspected inability based upon a perceived disability of the applicant
bull a retail store regional managers statement that hiring people with disabilities as greeters would depress customers
bull A hiring managers instructions to not hire anyone with limited mobility for sales positions
Examples of Disparate Treatment In Discriminatory Rule or Policy
bull An employer has a policy prohibiting pregnant women from working in jobs that the employer believes might pose a risk to the pregnancy This policy is iUcral unless the employer can demonstrate that being male or a non-pregnant female is a bona fide occupational qualification (BFOQ) In other words the employer would have to show that sex or pregnancy actually interferes with the employees abiltty to do the job The BFOQ defense is a very narrow exception to Title VII which employers can rarely establish
Examples of Disparate Treatment In Systemic Harassment- Sex
bull On a daily basis the male managers of a company made degrading comments to the fem ale employees abOut their bodies asked them questions abOut their ex lives and requested that they in sexual activiues Some female employees about the xual conduct to the human resources department but the conduct continued The managers claim that they were just joking The evidence indJcates that women as a class were subjected to a hostile working environment and that the is liab e for sexual harassment in iolation ofTitle
bull
May 9 20 1 4
1 8
Disparate Impact Cases
procedure policy practice disproportionate
impact
i
employenmplemented physical excludes pplicants
employment have
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull -where an employer has a neutral selection or
that has a adverse on people in a protected group such as a written test that disproportionately excludes all or a particular type of disabled employeesbull
bull
Both Theories May Apply
bull Some c1ses ra se both dispartte trearment and disparate imp1ct issues
bull For exmple if an invesnguion reveals that m a agliry test th1t
disabled job and the test may have been adopted for discriminatory reasons the case could be analyzed under both the wsparote treatment and disparte impact theories
bull Under either theory plaintiffs in discrimination cases mcludin EEOC the burden of proving that discrunination occurred
REMEDIES
bull Disparate Treatment Cases
bull Backpay
bull Reinstatement Instatement or Front Pay
bull Compensatory Damages
bull Punitive Damages
bull Non-Monetary (Afflmlltive Relief)
bull Attorneys Fees and Cost
May 9t 20 1 4
19
Services
University Texas Medical Centerv
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REMEDIES
Disparate Impact Cases
bull Backpay
bull Reinstatement ln tatement or Front Pay
bull Non-Ivlonetaty (Aff=tive Relict)
bull Attorneys Fees and Cost
Word of Caution
Special Issues of proof in ADA and Title VII
Retaliation Claims
Challenges to Standard of Proof
bull Shift in lliCed llotive cases to but for standard of proof
bull Gross v FBL Financial 557 US 167 (2009)-But For in ADEA and Title VII Retaliation
bull of SW 133 S Ct 2517 (2013)-Reaffuming
Groubut for standard in Title VII Rettliation cases
May 9 20 1 4
20
Palmqmst v Shinselo
Srwatka v Rockwel Auromatjon Inc
lewts v Humbolt Accwisition Corv
Pinkerton y Spelm s
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOS IUM
bull Other Coutts extendmg this to ADA cases -bull 8 F3 66 I Ctr 2012) bull
But For in ADA cases implied by chain analysis as follows
- ltehabiLtation Act borrows causation standard from ADA
middot ADA because standard bears a strilung rr mblancc to the ADEA because orbull standard
bull ADEA has been determined by Grou to be a but for standard
bull 591 Fld 57 (7ch Cir 2010)-7 Cir held But For causation standard is rrquircd in ADA cSCs
bull 681 Fld 312 (6ch Cir 202)-6Cir Also applies But For in ADA cases
bull Fifth Circuit - 521 Fld 513 (Sbullbull Cir 2008)-Mixed mauve in 501 cases which incorporues ADA standards But nm to ction 504 ca s whtch requires disabiJty as the sole rrason for adve action
bullADA
bullGINA
bullPDA
bullFMLA
bullWC
Todays Focus
May 9 20 1 4
21
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull ADA bull Equal Employment Opportunity Commission (EEOC)
bull FMLA- Department of Labor (Wage amp Hour Di1ston
bull Wo rken Compensation- Stlte Workers Compensation Commissions
Purpose of the ADA FMLA and Workers Compensation Laws
bull The ADA as mended pmhbits discrimmation llinsc applicants and employees who are dosabled regtrded as disabled or haC a record of doubdny
bull The FM lA sets minimum lcac standards for employees for the binh and n bom can of a chtld placement of bull child for adoption or rosier carr to carr rar m lmmediale funily member th a J(tious health condition and for the employees serious health condo ton
bull Worlun1 Compcnsacion laAS pmide for payment of compensation md rthabilitation for wotkplace in1uries and monom1ze employer habihty
ADA and GINA
May 9 20 1 4
22
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
TWIN STATUTES
ADA Here and Now
ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability- Conditions that exist now
GINA LOOKING DOWN THE ROAD
bull based on genetic information and not on the basis of a manifested condition - Potential Conditions
23
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
RECAP ADA Overview
The Americans with
Disabilities Act
Amendments Act of 2008
(ADAAA) EEOCs Final Regulations
ADA Definition of Disability
Basic 3-part definition remains the same
bull A physical or mental impairment that substantially limits a major life activity
bull Arecord of such an impairment
bull Being regarded as having such an impairment
However Congress changed the meanings of lcey terms used In these definitions
24
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Major Life Activities
bull Statute and EEOC regulations provide two non-exhaustive lists of major life activities
bull First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts
List of major life activities is not exhaustive
bull liftingbullcaring for oneself bullbendingbull performing bull speakingbull manual tasks bullbreathingbullseeing bulllearningbull hearing bull readingbull eating bullconcentratlngbull sleeping bullthinkingbullwalking bull communicatingbullstanding bullInteracting with bullsitting bull othersbullreaching bulland working
Major Life Activities Include Major Bodily Functions
bull New category of major life activities
bull Will make it easier for individuals with many different types of impairments to establish disability
25
would
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Major Bodily Functions
bull Functions of the immune system special sense organs and skin normal cell growth digestive genitourinary bowel bladder neurological brain respiratory circulatory cardiovascular endocrine hemic lymphatic musculoskeletal reproductive
bull Operations of an individual organ within a body system such as the operation of kidney liver or pancreas
Impairments That Are Episodic or In Remission
bull Remission Vill be prong one of disabilities ifi substantially limits a major life activity
WHEN ACTIVE bull Cancer is an example of impairment that may be in
remission
bull The Employer may balance the field during the reasonable accommodation analysis
Impairments That Are Episodic or In Remission
bull Episodic Impairments that ma) not affect a person 247 but which periodically flare up
bull eg epilepsy hypertension asthma diabetes major depressive disorder bipolar disorder schizophrenia
May 9 201 4
26
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
charges who
investigated filed-
I I
== w==-r -middot
T JiW1 _____T-ttl oAI __ _ -middot
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
Authority amp Role
bull The EEOC has the authoril) to investigate and Utigate of discrimination against employers are covered by the law
bull Our role in an investigation is to fairly and accurately assess the allegations in the charge and then make a finding
bull Most employment discrimination cases must be filed and at the EEOC before a lawsuit can be wiD be dismissed otherwise
EEOC National Statistics FY2012
Total Charge ofDiscrimi tion filed FY 2012 = 99412
Rae JJSil or JJ7 Sa JOJ56 305
Nadonal Orialn - 1083) oriO
llcUaion - )811 or W Color - 2fi62 or 2
RltUilarion 37836 lampl
Aac = 57 or 00 DiubWry 26)79 or 26Y
Equal Pay=1082 or IWo
GINA = 210 or OJ
EEOC National Statistics FY2012
Total Charges of Discrimination filed FY 2012 = 99412
Raa USll or JJne Sex = JOJ56 or l05yeno
Notional Oripn = 1083) or 109o
RcUJilon = J811 or 38
Color = 2662 or 2
Re111iadon = 37836 or 381
Aac= 7 or 230
Diubiliry 26l79 or 265 Equal Pay= 1082 or 11
GINA= 210 or oJ
ttlUij _ _ __ _ _tnoeef_
May 9 20 1 4
2
1bull
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
EEOC National Statistics FY2013
Total Charges of Dtscriminotion filed FY 2013 = 93727
c=) Races J6+1
Gmda111ll
-_____ Relalladon JO
+ 97 252 cbargeoreolved
+ 70 522 people obtained monetory and non-monecory beoelill duouah adminiouotive enforecment activitie (mediation voluntory oeldcmen11 amp conciliation efrom)
+ $37 21M in monetary bcndito obtalned throuah 17 600 mcril foetor rcsoluliono -11 private ICclor cnforcemcnl nconl
Source FYlOO EEOC Perfonnaoec and AccnuntabiUI)I Repon
Florida Trends FY 2013
The Miami District EEOC (Miami Tampa and SanJuan offices) received 7804 private sector discrimination charges
Miami 4 598
Tampa 2804
Sanjuan40 2
bull Monetary relief obtained from private sector enforcement efforts totaled S32 4 M
Florida CharJe Flllncs FY2013
1Ut10IIrln Cob
llcllal)n [qubulllhyen
QUIA
May 9 20 1 4
3
bullvwkplpCpound frrc qfunlawful
take PCQOlJZC nod nrzpmpdatc mnrdinl action discipline commensurate
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Your Obligations as the Employer
bull Make the discrimination harassment and retaliation
bull Promptly and confidentially inyestigatc complaints or discrimination harassment and retaliation
bull Where discrimination harassment and retaliation may have occuncd
(iewidt the offense)
TODAYS AGENDA
bull Ovorviltw of tholaws EEOC En forelt
bull EEOC Enfottltmcnt and Compbontlrocus
bull RKtntllmponant Cases
bull lntcrrby between ID A and tho ADA
bull lnterrbJ betwrm FMLh and the ADA
bull lntltrrbr bctwltm Workers Comprnsarion and tht ADA
bull Gtnt11e lnfonnarion Non-DiKrinunahOn Act (GINA
bull Health and Safety Concnns
bull Confodmtoaloty and Limil2h0ns on Modica Enms
bull Avaobble EEOC Resources to Assost Emplorltr Comploance bullmh the ADA
OVERVIEW
FEDERAL ENFORCEMENT OF
EMPLOYMENT ANTIshy
DISCRIMINATION
LAWS
May 9 201 4
4
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
What Employers Are Covered
bull Private Employers (15 or more employees) bull Educational Institutions bull Labor Organizations bull Joint LabormiddotManagement Apprenticeship
and Training Comminees (Tide VII amp ADA)
bull Employment Agencies Serving Covered Employers
bull State and Local Governments
Which Individuals are Protected
bull An employee
bull A temporary worker
bull A job applicant
bull A former employee
bull Undocumented workers
Employment Discrimination Laws
The EEOC enforce m number offederal laWll prohibiting employment di1crimination including
Title VII of the Civil Righcs Act of 1964 (fide VII) Age DiOltrimingtlion in Employment Act of 1967 (ADEll)
bull Equal Pbully Act of 1963 EPA) bull Lilly Lcdbcucr Fair Pgty Act of 009 bull Tide I amp V of the Americns vrh Diubilitics Act of 990
(ADA) ADA Amendments Act of 2008 (ADAAA)
bull Title II of the Generic lnformgtlion Nondiscrirninotoon Act of 2008(GINA)
bull Prcgnoncy Discriminorion Act of 1978
5
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Discrimination Can Occur in the FoUowing Scenarios
bull HireFire
bull Wages
bull PromotionDemolion
bull Harassment
bull Different Tenns and Conditions
bull Assignments Benefits Leave Training
bull Failure to Accommodate for Disability
bull Failure to Accommodate for Religion
Retaliation Prohibited by All Statutes
bull No Stand Alone Retaliation Statute
bull It is unlawful to penalize punish or deny an employment benefit because that penon opposed discrimination or participated in any way in tbe invebulltigation o( a charge
Retaliation
bull Example in the Disability Context-
A hotel room aucndant ccovcs a asonable accommodation which allows her to have a laundry auendant step into a room she has cleaned to collect ptles of uscd lmen Her supervisor subsequently move s her from her long standing room assignments and assign1 her to clean room and guest suites normally uscd by wcddmg auendees and which= known to req stgntficantly more cleaning
Proof nuy be by direct evidence (nuemcnu) or circumstantial evidence (eg ttnuna
May 9 20 1 4
6
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEO Complaint
and Investigation
Process
EEO Complaint and Investigation Processes
Three Different Processes
bull 1 Federal Sector Process
bull 2 Private Sector Process
bull 3 Public Sector Process
FEDERAL
SECTOR
PROCESS
7
Ucbull Color
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Federal Sector EEO Complaint Process
bull Regulations provide for the acceptance of complaints from
bull Current employees bull Fonner emplo)middotees bull Applicants for employment
Basis for Filing a Complaint of
Discrimination
Rdogion tgc(HO) National Origin Disability (MtmliPhysical) Sex (gender sexual hamsmcnl scxual ontnution) Reprisal
bullbullaaot---_tbullMd Dillwbullttorbullca bullbullpfDCftMd dn-IM EEOCbull runlurn (ot COpl-tof ow-_ Bd- Snel OWcoo(EOC Otdn No 001)dRtWMin29CFitrbullr1IU
Threshold Inquiry
When did the aUeged incident or action occur
bull Did it occur within the last 45 calendar days
What hann have you suffered
bull Must be specific
8
u
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Stages of an Federal Agency EEO Complaint
INFORMAL COMPLAINT STAGE Contact Agency EEO Office or Agent
liiJ Counoeling Sagc bull 30 d
bull Counsdmg bull Pact Flftdanc bull lnformalllnoW bull lOdopbull 1DRIMWOOft bull I( ADR ilbullciKt-d tlw prnod 11 lltrndcd to up to
lOUJ1 bull Nooce of Right to fbulllbull complgtnt th thbull
agmlty bull Compwn h IS dbullp to file fomul
compbmt
FEDERAL AGENCY EEO COMPLAINT PROCESS
Formal Stage
Acccp12bility Stogc
bull File fonnl complbnt th OE O
bull Accept DismiSS
bull Asstgn for In csttgtbullon
May 9 201 4
9
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
EEO COMPLAINT PROCESS
bull lnvcsligativc S11gc
bull Potential Methods aOn-Sut bRcqu to for
Producbon
cAffidgtgtto
d Vampdto confere-nce
bull Timcfnme -180 dafl (r ltbulltendo or amondnl)
EEO COMPLAINT PROCESS El crion Stage
bull Advisement of RghtJ Issued
bull CompiUnmt mgtkcs election - 30 doys
bull eEOC Heanng or bull FlmlltgenCJ Dtruion
Both drcisions cn br appralrd
Most Common Reasons For Dismissal
bull Time Frames
bull Initial EEO Contact bull 45 Calendar Ooys
bull Filing Fonnal Comphunts bull IS Calcndbullr Days after
rcccopt of Notocc of Right to File
10
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
continued bull Failure to State a Claim
bull Un3ble to show you 3re hanned by the m3tter complained of
bull fail to allege a protecrie bam of discnmin3non
Identical claim
bull Has already been brought before the Discrimin3non Complaint Process
bull Has bcen rtiscd in 3 negoti3tcd grievance procedure for most agencies
bull MSPB 3ppeal
PRIVATE
SECTOR
PROCESS
INTAKE
bull InquiryIntake Questionnaire (bring or mail
bull Letter or complaint (mail or in person) -No Attorney needed- Must be signed
bull EEOC may request more information
bull Statute of Limitation- 180 days unless State or Local Law extends to 300 days
bull Age Discrimination eCtended only if STATE law eCtends it
May 9 20 1 4
11
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Service to Employer
bull Vtthin 10 days notice and copy of charge sent to employer
bull Employer invited to send Statement of Position and sometime respond to EEOC Request for Information
bull EEOC has subpoena power
bull Some cases may be invited to mediation- Both must agree
Mediation
bull Mediation scheduled
bull Parties meet with mediator bull FirewaU exists
bull Tries to reach voluntary settlement
bull No determination of right or wrong- no cause determination made
bull lIediated settlement is an agreement reach by the parties but to which the EEOC is also a signer
bull Compliance may be enforced by the EEOC
Investigation
bull If not resolved by mediation assigned to investigator
bull Investigation may include
a On-Sire visits andor Interviews
b Requests for Information
c Fact finding conference
d Evidence Analysis
1 2
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Determination bull Based upon the evidence violation found or not
found
bull If no violation or at any srage if no juriroiction or if EEOC probably cannot reach determination case closed and Notice of Right to Sue i sued- NRTS may be requested after 90 days
bull If violation found conciliation is attempted
bull If no settlement Notice of Right to Sue Issued or EEOC decides to litigate
bull Reconsideration may be requ ted
FAIR EMPLOYMENT PRACTICE AGENCIES
bullWorkshare Agreement
bullSubstantial Weight Review
PUBLIC SECTOR
PROCESS
13
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
EEOC Public Sector Process
middotSame EEOC Intake Investigation and Cause Determination process
middotEEOC forwards its determination to the Department of Justice (DOJ) which issues the Notice of Right to Sue
bullLitigation of Public Sector Charges determined and conducted by DOJ
EEOC Public Sector Process
middotEEOCs Strategic Plan requires Internal and External Integration of Resources
bullCollaboration of efforts and resources by EEOC and DOJ regarding Public Sector Investigations
Other Partnerships
bullInternal and External Integration of Resources has also fostered EEOC collaboration on public and Private Sector maners with
middotDOL (OFCCP amp WampH)
bullFair Employment Practice Agencies
bullAnd others who arc a part of the multi-pronged national equal employment law enforcement effort
14
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
SYSTEMIC
INVESTIGATIONS
EEOC STRATEGIC FOCUS
Basis for Systemic Enforcement
Systemic cases can be brought under any of the statutes enforced by the EEOC Including ADAAA GINA and PDA
Strategic Plan to have Sustainable Impact Most effective way to reduce and deter discriminatory practices In the workplace
Systemic cases usually Involve
company-wide practices or policies
The EEOC may request and analyze
extensive electronic data and numerous
documents conduct statistical analyses and
interview witnesses and class members
1 5
D isparate
(directed targeted)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Two Types of Systemic Discrimination Cases
bull t Systemic Disparate Treaunent Cases
bull 2 Systemic Disparate Impact Cases
Treatment Cases
bull where the discrimination was Intentional or
bull Disparate treatment cases are the most common type of cases
Three Main Types of Systemic Disparate Treatment Cases
(1) discriminatory treatment In employment
decisions such as hiring promotion and
discharge
eg An employer refuses to hire or promote
people based on their disability
May 9 20 1 4
16
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Three Main Types of Systemic Disparate Treatment Cases
(2) discriminatory rules practices and
policies eg cases where an employer has a policy practice
or rule that on its face treats people In a protected
group differendy than others such as a rule that an
employee who is returning to work from a
Reasonabfe Accommodation leave of absence must
re-test to qualify to do a job
Three Main Types of Systemic Disparate Treatment Cases
(3) harassment
eg harassment based upon corporate or workplace culture or practice or which are codified in policies or practice
Examples of Disparate Treatment In Employment Decisions
bull a hotel managers statement that he does not hire disabled applicants because they miss too much rime off work
bull a companys statement to a temporary placement agency that it wants fit people for its office positions jobs
17
engtge complained
company VII
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Examples of Disparate Treatment in Employment Decisions
bull notations on employment application$ indicating the suspected inability based upon a perceived disability of the applicant
bull a retail store regional managers statement that hiring people with disabilities as greeters would depress customers
bull A hiring managers instructions to not hire anyone with limited mobility for sales positions
Examples of Disparate Treatment In Discriminatory Rule or Policy
bull An employer has a policy prohibiting pregnant women from working in jobs that the employer believes might pose a risk to the pregnancy This policy is iUcral unless the employer can demonstrate that being male or a non-pregnant female is a bona fide occupational qualification (BFOQ) In other words the employer would have to show that sex or pregnancy actually interferes with the employees abiltty to do the job The BFOQ defense is a very narrow exception to Title VII which employers can rarely establish
Examples of Disparate Treatment In Systemic Harassment- Sex
bull On a daily basis the male managers of a company made degrading comments to the fem ale employees abOut their bodies asked them questions abOut their ex lives and requested that they in sexual activiues Some female employees about the xual conduct to the human resources department but the conduct continued The managers claim that they were just joking The evidence indJcates that women as a class were subjected to a hostile working environment and that the is liab e for sexual harassment in iolation ofTitle
bull
May 9 20 1 4
1 8
Disparate Impact Cases
procedure policy practice disproportionate
impact
i
employenmplemented physical excludes pplicants
employment have
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull -where an employer has a neutral selection or
that has a adverse on people in a protected group such as a written test that disproportionately excludes all or a particular type of disabled employeesbull
bull
Both Theories May Apply
bull Some c1ses ra se both dispartte trearment and disparate imp1ct issues
bull For exmple if an invesnguion reveals that m a agliry test th1t
disabled job and the test may have been adopted for discriminatory reasons the case could be analyzed under both the wsparote treatment and disparte impact theories
bull Under either theory plaintiffs in discrimination cases mcludin EEOC the burden of proving that discrunination occurred
REMEDIES
bull Disparate Treatment Cases
bull Backpay
bull Reinstatement Instatement or Front Pay
bull Compensatory Damages
bull Punitive Damages
bull Non-Monetary (Afflmlltive Relief)
bull Attorneys Fees and Cost
May 9t 20 1 4
19
Services
University Texas Medical Centerv
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REMEDIES
Disparate Impact Cases
bull Backpay
bull Reinstatement ln tatement or Front Pay
bull Non-Ivlonetaty (Aff=tive Relict)
bull Attorneys Fees and Cost
Word of Caution
Special Issues of proof in ADA and Title VII
Retaliation Claims
Challenges to Standard of Proof
bull Shift in lliCed llotive cases to but for standard of proof
bull Gross v FBL Financial 557 US 167 (2009)-But For in ADEA and Title VII Retaliation
bull of SW 133 S Ct 2517 (2013)-Reaffuming
Groubut for standard in Title VII Rettliation cases
May 9 20 1 4
20
Palmqmst v Shinselo
Srwatka v Rockwel Auromatjon Inc
lewts v Humbolt Accwisition Corv
Pinkerton y Spelm s
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOS IUM
bull Other Coutts extendmg this to ADA cases -bull 8 F3 66 I Ctr 2012) bull
But For in ADA cases implied by chain analysis as follows
- ltehabiLtation Act borrows causation standard from ADA
middot ADA because standard bears a strilung rr mblancc to the ADEA because orbull standard
bull ADEA has been determined by Grou to be a but for standard
bull 591 Fld 57 (7ch Cir 2010)-7 Cir held But For causation standard is rrquircd in ADA cSCs
bull 681 Fld 312 (6ch Cir 202)-6Cir Also applies But For in ADA cases
bull Fifth Circuit - 521 Fld 513 (Sbullbull Cir 2008)-Mixed mauve in 501 cases which incorporues ADA standards But nm to ction 504 ca s whtch requires disabiJty as the sole rrason for adve action
bullADA
bullGINA
bullPDA
bullFMLA
bullWC
Todays Focus
May 9 20 1 4
21
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull ADA bull Equal Employment Opportunity Commission (EEOC)
bull FMLA- Department of Labor (Wage amp Hour Di1ston
bull Wo rken Compensation- Stlte Workers Compensation Commissions
Purpose of the ADA FMLA and Workers Compensation Laws
bull The ADA as mended pmhbits discrimmation llinsc applicants and employees who are dosabled regtrded as disabled or haC a record of doubdny
bull The FM lA sets minimum lcac standards for employees for the binh and n bom can of a chtld placement of bull child for adoption or rosier carr to carr rar m lmmediale funily member th a J(tious health condition and for the employees serious health condo ton
bull Worlun1 Compcnsacion laAS pmide for payment of compensation md rthabilitation for wotkplace in1uries and monom1ze employer habihty
ADA and GINA
May 9 20 1 4
22
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
TWIN STATUTES
ADA Here and Now
ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability- Conditions that exist now
GINA LOOKING DOWN THE ROAD
bull based on genetic information and not on the basis of a manifested condition - Potential Conditions
23
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
RECAP ADA Overview
The Americans with
Disabilities Act
Amendments Act of 2008
(ADAAA) EEOCs Final Regulations
ADA Definition of Disability
Basic 3-part definition remains the same
bull A physical or mental impairment that substantially limits a major life activity
bull Arecord of such an impairment
bull Being regarded as having such an impairment
However Congress changed the meanings of lcey terms used In these definitions
24
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Major Life Activities
bull Statute and EEOC regulations provide two non-exhaustive lists of major life activities
bull First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts
List of major life activities is not exhaustive
bull liftingbullcaring for oneself bullbendingbull performing bull speakingbull manual tasks bullbreathingbullseeing bulllearningbull hearing bull readingbull eating bullconcentratlngbull sleeping bullthinkingbullwalking bull communicatingbullstanding bullInteracting with bullsitting bull othersbullreaching bulland working
Major Life Activities Include Major Bodily Functions
bull New category of major life activities
bull Will make it easier for individuals with many different types of impairments to establish disability
25
would
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Major Bodily Functions
bull Functions of the immune system special sense organs and skin normal cell growth digestive genitourinary bowel bladder neurological brain respiratory circulatory cardiovascular endocrine hemic lymphatic musculoskeletal reproductive
bull Operations of an individual organ within a body system such as the operation of kidney liver or pancreas
Impairments That Are Episodic or In Remission
bull Remission Vill be prong one of disabilities ifi substantially limits a major life activity
WHEN ACTIVE bull Cancer is an example of impairment that may be in
remission
bull The Employer may balance the field during the reasonable accommodation analysis
Impairments That Are Episodic or In Remission
bull Episodic Impairments that ma) not affect a person 247 but which periodically flare up
bull eg epilepsy hypertension asthma diabetes major depressive disorder bipolar disorder schizophrenia
May 9 201 4
26
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
1bull
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
EEOC National Statistics FY2013
Total Charges of Dtscriminotion filed FY 2013 = 93727
c=) Races J6+1
Gmda111ll
-_____ Relalladon JO
+ 97 252 cbargeoreolved
+ 70 522 people obtained monetory and non-monecory beoelill duouah adminiouotive enforecment activitie (mediation voluntory oeldcmen11 amp conciliation efrom)
+ $37 21M in monetary bcndito obtalned throuah 17 600 mcril foetor rcsoluliono -11 private ICclor cnforcemcnl nconl
Source FYlOO EEOC Perfonnaoec and AccnuntabiUI)I Repon
Florida Trends FY 2013
The Miami District EEOC (Miami Tampa and SanJuan offices) received 7804 private sector discrimination charges
Miami 4 598
Tampa 2804
Sanjuan40 2
bull Monetary relief obtained from private sector enforcement efforts totaled S32 4 M
Florida CharJe Flllncs FY2013
1Ut10IIrln Cob
llcllal)n [qubulllhyen
QUIA
May 9 20 1 4
3
bullvwkplpCpound frrc qfunlawful
take PCQOlJZC nod nrzpmpdatc mnrdinl action discipline commensurate
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Your Obligations as the Employer
bull Make the discrimination harassment and retaliation
bull Promptly and confidentially inyestigatc complaints or discrimination harassment and retaliation
bull Where discrimination harassment and retaliation may have occuncd
(iewidt the offense)
TODAYS AGENDA
bull Ovorviltw of tholaws EEOC En forelt
bull EEOC Enfottltmcnt and Compbontlrocus
bull RKtntllmponant Cases
bull lntcrrby between ID A and tho ADA
bull lnterrbJ betwrm FMLh and the ADA
bull lntltrrbr bctwltm Workers Comprnsarion and tht ADA
bull Gtnt11e lnfonnarion Non-DiKrinunahOn Act (GINA
bull Health and Safety Concnns
bull Confodmtoaloty and Limil2h0ns on Modica Enms
bull Avaobble EEOC Resources to Assost Emplorltr Comploance bullmh the ADA
OVERVIEW
FEDERAL ENFORCEMENT OF
EMPLOYMENT ANTIshy
DISCRIMINATION
LAWS
May 9 201 4
4
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
What Employers Are Covered
bull Private Employers (15 or more employees) bull Educational Institutions bull Labor Organizations bull Joint LabormiddotManagement Apprenticeship
and Training Comminees (Tide VII amp ADA)
bull Employment Agencies Serving Covered Employers
bull State and Local Governments
Which Individuals are Protected
bull An employee
bull A temporary worker
bull A job applicant
bull A former employee
bull Undocumented workers
Employment Discrimination Laws
The EEOC enforce m number offederal laWll prohibiting employment di1crimination including
Title VII of the Civil Righcs Act of 1964 (fide VII) Age DiOltrimingtlion in Employment Act of 1967 (ADEll)
bull Equal Pbully Act of 1963 EPA) bull Lilly Lcdbcucr Fair Pgty Act of 009 bull Tide I amp V of the Americns vrh Diubilitics Act of 990
(ADA) ADA Amendments Act of 2008 (ADAAA)
bull Title II of the Generic lnformgtlion Nondiscrirninotoon Act of 2008(GINA)
bull Prcgnoncy Discriminorion Act of 1978
5
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Discrimination Can Occur in the FoUowing Scenarios
bull HireFire
bull Wages
bull PromotionDemolion
bull Harassment
bull Different Tenns and Conditions
bull Assignments Benefits Leave Training
bull Failure to Accommodate for Disability
bull Failure to Accommodate for Religion
Retaliation Prohibited by All Statutes
bull No Stand Alone Retaliation Statute
bull It is unlawful to penalize punish or deny an employment benefit because that penon opposed discrimination or participated in any way in tbe invebulltigation o( a charge
Retaliation
bull Example in the Disability Context-
A hotel room aucndant ccovcs a asonable accommodation which allows her to have a laundry auendant step into a room she has cleaned to collect ptles of uscd lmen Her supervisor subsequently move s her from her long standing room assignments and assign1 her to clean room and guest suites normally uscd by wcddmg auendees and which= known to req stgntficantly more cleaning
Proof nuy be by direct evidence (nuemcnu) or circumstantial evidence (eg ttnuna
May 9 20 1 4
6
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEO Complaint
and Investigation
Process
EEO Complaint and Investigation Processes
Three Different Processes
bull 1 Federal Sector Process
bull 2 Private Sector Process
bull 3 Public Sector Process
FEDERAL
SECTOR
PROCESS
7
Ucbull Color
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Federal Sector EEO Complaint Process
bull Regulations provide for the acceptance of complaints from
bull Current employees bull Fonner emplo)middotees bull Applicants for employment
Basis for Filing a Complaint of
Discrimination
Rdogion tgc(HO) National Origin Disability (MtmliPhysical) Sex (gender sexual hamsmcnl scxual ontnution) Reprisal
bullbullaaot---_tbullMd Dillwbullttorbullca bullbullpfDCftMd dn-IM EEOCbull runlurn (ot COpl-tof ow-_ Bd- Snel OWcoo(EOC Otdn No 001)dRtWMin29CFitrbullr1IU
Threshold Inquiry
When did the aUeged incident or action occur
bull Did it occur within the last 45 calendar days
What hann have you suffered
bull Must be specific
8
u
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Stages of an Federal Agency EEO Complaint
INFORMAL COMPLAINT STAGE Contact Agency EEO Office or Agent
liiJ Counoeling Sagc bull 30 d
bull Counsdmg bull Pact Flftdanc bull lnformalllnoW bull lOdopbull 1DRIMWOOft bull I( ADR ilbullciKt-d tlw prnod 11 lltrndcd to up to
lOUJ1 bull Nooce of Right to fbulllbull complgtnt th thbull
agmlty bull Compwn h IS dbullp to file fomul
compbmt
FEDERAL AGENCY EEO COMPLAINT PROCESS
Formal Stage
Acccp12bility Stogc
bull File fonnl complbnt th OE O
bull Accept DismiSS
bull Asstgn for In csttgtbullon
May 9 201 4
9
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
EEO COMPLAINT PROCESS
bull lnvcsligativc S11gc
bull Potential Methods aOn-Sut bRcqu to for
Producbon
cAffidgtgtto
d Vampdto confere-nce
bull Timcfnme -180 dafl (r ltbulltendo or amondnl)
EEO COMPLAINT PROCESS El crion Stage
bull Advisement of RghtJ Issued
bull CompiUnmt mgtkcs election - 30 doys
bull eEOC Heanng or bull FlmlltgenCJ Dtruion
Both drcisions cn br appralrd
Most Common Reasons For Dismissal
bull Time Frames
bull Initial EEO Contact bull 45 Calendar Ooys
bull Filing Fonnal Comphunts bull IS Calcndbullr Days after
rcccopt of Notocc of Right to File
10
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
continued bull Failure to State a Claim
bull Un3ble to show you 3re hanned by the m3tter complained of
bull fail to allege a protecrie bam of discnmin3non
Identical claim
bull Has already been brought before the Discrimin3non Complaint Process
bull Has bcen rtiscd in 3 negoti3tcd grievance procedure for most agencies
bull MSPB 3ppeal
PRIVATE
SECTOR
PROCESS
INTAKE
bull InquiryIntake Questionnaire (bring or mail
bull Letter or complaint (mail or in person) -No Attorney needed- Must be signed
bull EEOC may request more information
bull Statute of Limitation- 180 days unless State or Local Law extends to 300 days
bull Age Discrimination eCtended only if STATE law eCtends it
May 9 20 1 4
11
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Service to Employer
bull Vtthin 10 days notice and copy of charge sent to employer
bull Employer invited to send Statement of Position and sometime respond to EEOC Request for Information
bull EEOC has subpoena power
bull Some cases may be invited to mediation- Both must agree
Mediation
bull Mediation scheduled
bull Parties meet with mediator bull FirewaU exists
bull Tries to reach voluntary settlement
bull No determination of right or wrong- no cause determination made
bull lIediated settlement is an agreement reach by the parties but to which the EEOC is also a signer
bull Compliance may be enforced by the EEOC
Investigation
bull If not resolved by mediation assigned to investigator
bull Investigation may include
a On-Sire visits andor Interviews
b Requests for Information
c Fact finding conference
d Evidence Analysis
1 2
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Determination bull Based upon the evidence violation found or not
found
bull If no violation or at any srage if no juriroiction or if EEOC probably cannot reach determination case closed and Notice of Right to Sue i sued- NRTS may be requested after 90 days
bull If violation found conciliation is attempted
bull If no settlement Notice of Right to Sue Issued or EEOC decides to litigate
bull Reconsideration may be requ ted
FAIR EMPLOYMENT PRACTICE AGENCIES
bullWorkshare Agreement
bullSubstantial Weight Review
PUBLIC SECTOR
PROCESS
13
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
EEOC Public Sector Process
middotSame EEOC Intake Investigation and Cause Determination process
middotEEOC forwards its determination to the Department of Justice (DOJ) which issues the Notice of Right to Sue
bullLitigation of Public Sector Charges determined and conducted by DOJ
EEOC Public Sector Process
middotEEOCs Strategic Plan requires Internal and External Integration of Resources
bullCollaboration of efforts and resources by EEOC and DOJ regarding Public Sector Investigations
Other Partnerships
bullInternal and External Integration of Resources has also fostered EEOC collaboration on public and Private Sector maners with
middotDOL (OFCCP amp WampH)
bullFair Employment Practice Agencies
bullAnd others who arc a part of the multi-pronged national equal employment law enforcement effort
14
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
SYSTEMIC
INVESTIGATIONS
EEOC STRATEGIC FOCUS
Basis for Systemic Enforcement
Systemic cases can be brought under any of the statutes enforced by the EEOC Including ADAAA GINA and PDA
Strategic Plan to have Sustainable Impact Most effective way to reduce and deter discriminatory practices In the workplace
Systemic cases usually Involve
company-wide practices or policies
The EEOC may request and analyze
extensive electronic data and numerous
documents conduct statistical analyses and
interview witnesses and class members
1 5
D isparate
(directed targeted)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Two Types of Systemic Discrimination Cases
bull t Systemic Disparate Treaunent Cases
bull 2 Systemic Disparate Impact Cases
Treatment Cases
bull where the discrimination was Intentional or
bull Disparate treatment cases are the most common type of cases
Three Main Types of Systemic Disparate Treatment Cases
(1) discriminatory treatment In employment
decisions such as hiring promotion and
discharge
eg An employer refuses to hire or promote
people based on their disability
May 9 20 1 4
16
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Three Main Types of Systemic Disparate Treatment Cases
(2) discriminatory rules practices and
policies eg cases where an employer has a policy practice
or rule that on its face treats people In a protected
group differendy than others such as a rule that an
employee who is returning to work from a
Reasonabfe Accommodation leave of absence must
re-test to qualify to do a job
Three Main Types of Systemic Disparate Treatment Cases
(3) harassment
eg harassment based upon corporate or workplace culture or practice or which are codified in policies or practice
Examples of Disparate Treatment In Employment Decisions
bull a hotel managers statement that he does not hire disabled applicants because they miss too much rime off work
bull a companys statement to a temporary placement agency that it wants fit people for its office positions jobs
17
engtge complained
company VII
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Examples of Disparate Treatment in Employment Decisions
bull notations on employment application$ indicating the suspected inability based upon a perceived disability of the applicant
bull a retail store regional managers statement that hiring people with disabilities as greeters would depress customers
bull A hiring managers instructions to not hire anyone with limited mobility for sales positions
Examples of Disparate Treatment In Discriminatory Rule or Policy
bull An employer has a policy prohibiting pregnant women from working in jobs that the employer believes might pose a risk to the pregnancy This policy is iUcral unless the employer can demonstrate that being male or a non-pregnant female is a bona fide occupational qualification (BFOQ) In other words the employer would have to show that sex or pregnancy actually interferes with the employees abiltty to do the job The BFOQ defense is a very narrow exception to Title VII which employers can rarely establish
Examples of Disparate Treatment In Systemic Harassment- Sex
bull On a daily basis the male managers of a company made degrading comments to the fem ale employees abOut their bodies asked them questions abOut their ex lives and requested that they in sexual activiues Some female employees about the xual conduct to the human resources department but the conduct continued The managers claim that they were just joking The evidence indJcates that women as a class were subjected to a hostile working environment and that the is liab e for sexual harassment in iolation ofTitle
bull
May 9 20 1 4
1 8
Disparate Impact Cases
procedure policy practice disproportionate
impact
i
employenmplemented physical excludes pplicants
employment have
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull -where an employer has a neutral selection or
that has a adverse on people in a protected group such as a written test that disproportionately excludes all or a particular type of disabled employeesbull
bull
Both Theories May Apply
bull Some c1ses ra se both dispartte trearment and disparate imp1ct issues
bull For exmple if an invesnguion reveals that m a agliry test th1t
disabled job and the test may have been adopted for discriminatory reasons the case could be analyzed under both the wsparote treatment and disparte impact theories
bull Under either theory plaintiffs in discrimination cases mcludin EEOC the burden of proving that discrunination occurred
REMEDIES
bull Disparate Treatment Cases
bull Backpay
bull Reinstatement Instatement or Front Pay
bull Compensatory Damages
bull Punitive Damages
bull Non-Monetary (Afflmlltive Relief)
bull Attorneys Fees and Cost
May 9t 20 1 4
19
Services
University Texas Medical Centerv
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REMEDIES
Disparate Impact Cases
bull Backpay
bull Reinstatement ln tatement or Front Pay
bull Non-Ivlonetaty (Aff=tive Relict)
bull Attorneys Fees and Cost
Word of Caution
Special Issues of proof in ADA and Title VII
Retaliation Claims
Challenges to Standard of Proof
bull Shift in lliCed llotive cases to but for standard of proof
bull Gross v FBL Financial 557 US 167 (2009)-But For in ADEA and Title VII Retaliation
bull of SW 133 S Ct 2517 (2013)-Reaffuming
Groubut for standard in Title VII Rettliation cases
May 9 20 1 4
20
Palmqmst v Shinselo
Srwatka v Rockwel Auromatjon Inc
lewts v Humbolt Accwisition Corv
Pinkerton y Spelm s
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOS IUM
bull Other Coutts extendmg this to ADA cases -bull 8 F3 66 I Ctr 2012) bull
But For in ADA cases implied by chain analysis as follows
- ltehabiLtation Act borrows causation standard from ADA
middot ADA because standard bears a strilung rr mblancc to the ADEA because orbull standard
bull ADEA has been determined by Grou to be a but for standard
bull 591 Fld 57 (7ch Cir 2010)-7 Cir held But For causation standard is rrquircd in ADA cSCs
bull 681 Fld 312 (6ch Cir 202)-6Cir Also applies But For in ADA cases
bull Fifth Circuit - 521 Fld 513 (Sbullbull Cir 2008)-Mixed mauve in 501 cases which incorporues ADA standards But nm to ction 504 ca s whtch requires disabiJty as the sole rrason for adve action
bullADA
bullGINA
bullPDA
bullFMLA
bullWC
Todays Focus
May 9 20 1 4
21
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull ADA bull Equal Employment Opportunity Commission (EEOC)
bull FMLA- Department of Labor (Wage amp Hour Di1ston
bull Wo rken Compensation- Stlte Workers Compensation Commissions
Purpose of the ADA FMLA and Workers Compensation Laws
bull The ADA as mended pmhbits discrimmation llinsc applicants and employees who are dosabled regtrded as disabled or haC a record of doubdny
bull The FM lA sets minimum lcac standards for employees for the binh and n bom can of a chtld placement of bull child for adoption or rosier carr to carr rar m lmmediale funily member th a J(tious health condition and for the employees serious health condo ton
bull Worlun1 Compcnsacion laAS pmide for payment of compensation md rthabilitation for wotkplace in1uries and monom1ze employer habihty
ADA and GINA
May 9 20 1 4
22
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
TWIN STATUTES
ADA Here and Now
ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability- Conditions that exist now
GINA LOOKING DOWN THE ROAD
bull based on genetic information and not on the basis of a manifested condition - Potential Conditions
23
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
RECAP ADA Overview
The Americans with
Disabilities Act
Amendments Act of 2008
(ADAAA) EEOCs Final Regulations
ADA Definition of Disability
Basic 3-part definition remains the same
bull A physical or mental impairment that substantially limits a major life activity
bull Arecord of such an impairment
bull Being regarded as having such an impairment
However Congress changed the meanings of lcey terms used In these definitions
24
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Major Life Activities
bull Statute and EEOC regulations provide two non-exhaustive lists of major life activities
bull First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts
List of major life activities is not exhaustive
bull liftingbullcaring for oneself bullbendingbull performing bull speakingbull manual tasks bullbreathingbullseeing bulllearningbull hearing bull readingbull eating bullconcentratlngbull sleeping bullthinkingbullwalking bull communicatingbullstanding bullInteracting with bullsitting bull othersbullreaching bulland working
Major Life Activities Include Major Bodily Functions
bull New category of major life activities
bull Will make it easier for individuals with many different types of impairments to establish disability
25
would
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Major Bodily Functions
bull Functions of the immune system special sense organs and skin normal cell growth digestive genitourinary bowel bladder neurological brain respiratory circulatory cardiovascular endocrine hemic lymphatic musculoskeletal reproductive
bull Operations of an individual organ within a body system such as the operation of kidney liver or pancreas
Impairments That Are Episodic or In Remission
bull Remission Vill be prong one of disabilities ifi substantially limits a major life activity
WHEN ACTIVE bull Cancer is an example of impairment that may be in
remission
bull The Employer may balance the field during the reasonable accommodation analysis
Impairments That Are Episodic or In Remission
bull Episodic Impairments that ma) not affect a person 247 but which periodically flare up
bull eg epilepsy hypertension asthma diabetes major depressive disorder bipolar disorder schizophrenia
May 9 201 4
26
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
bullvwkplpCpound frrc qfunlawful
take PCQOlJZC nod nrzpmpdatc mnrdinl action discipline commensurate
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Your Obligations as the Employer
bull Make the discrimination harassment and retaliation
bull Promptly and confidentially inyestigatc complaints or discrimination harassment and retaliation
bull Where discrimination harassment and retaliation may have occuncd
(iewidt the offense)
TODAYS AGENDA
bull Ovorviltw of tholaws EEOC En forelt
bull EEOC Enfottltmcnt and Compbontlrocus
bull RKtntllmponant Cases
bull lntcrrby between ID A and tho ADA
bull lnterrbJ betwrm FMLh and the ADA
bull lntltrrbr bctwltm Workers Comprnsarion and tht ADA
bull Gtnt11e lnfonnarion Non-DiKrinunahOn Act (GINA
bull Health and Safety Concnns
bull Confodmtoaloty and Limil2h0ns on Modica Enms
bull Avaobble EEOC Resources to Assost Emplorltr Comploance bullmh the ADA
OVERVIEW
FEDERAL ENFORCEMENT OF
EMPLOYMENT ANTIshy
DISCRIMINATION
LAWS
May 9 201 4
4
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
What Employers Are Covered
bull Private Employers (15 or more employees) bull Educational Institutions bull Labor Organizations bull Joint LabormiddotManagement Apprenticeship
and Training Comminees (Tide VII amp ADA)
bull Employment Agencies Serving Covered Employers
bull State and Local Governments
Which Individuals are Protected
bull An employee
bull A temporary worker
bull A job applicant
bull A former employee
bull Undocumented workers
Employment Discrimination Laws
The EEOC enforce m number offederal laWll prohibiting employment di1crimination including
Title VII of the Civil Righcs Act of 1964 (fide VII) Age DiOltrimingtlion in Employment Act of 1967 (ADEll)
bull Equal Pbully Act of 1963 EPA) bull Lilly Lcdbcucr Fair Pgty Act of 009 bull Tide I amp V of the Americns vrh Diubilitics Act of 990
(ADA) ADA Amendments Act of 2008 (ADAAA)
bull Title II of the Generic lnformgtlion Nondiscrirninotoon Act of 2008(GINA)
bull Prcgnoncy Discriminorion Act of 1978
5
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Discrimination Can Occur in the FoUowing Scenarios
bull HireFire
bull Wages
bull PromotionDemolion
bull Harassment
bull Different Tenns and Conditions
bull Assignments Benefits Leave Training
bull Failure to Accommodate for Disability
bull Failure to Accommodate for Religion
Retaliation Prohibited by All Statutes
bull No Stand Alone Retaliation Statute
bull It is unlawful to penalize punish or deny an employment benefit because that penon opposed discrimination or participated in any way in tbe invebulltigation o( a charge
Retaliation
bull Example in the Disability Context-
A hotel room aucndant ccovcs a asonable accommodation which allows her to have a laundry auendant step into a room she has cleaned to collect ptles of uscd lmen Her supervisor subsequently move s her from her long standing room assignments and assign1 her to clean room and guest suites normally uscd by wcddmg auendees and which= known to req stgntficantly more cleaning
Proof nuy be by direct evidence (nuemcnu) or circumstantial evidence (eg ttnuna
May 9 20 1 4
6
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEO Complaint
and Investigation
Process
EEO Complaint and Investigation Processes
Three Different Processes
bull 1 Federal Sector Process
bull 2 Private Sector Process
bull 3 Public Sector Process
FEDERAL
SECTOR
PROCESS
7
Ucbull Color
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Federal Sector EEO Complaint Process
bull Regulations provide for the acceptance of complaints from
bull Current employees bull Fonner emplo)middotees bull Applicants for employment
Basis for Filing a Complaint of
Discrimination
Rdogion tgc(HO) National Origin Disability (MtmliPhysical) Sex (gender sexual hamsmcnl scxual ontnution) Reprisal
bullbullaaot---_tbullMd Dillwbullttorbullca bullbullpfDCftMd dn-IM EEOCbull runlurn (ot COpl-tof ow-_ Bd- Snel OWcoo(EOC Otdn No 001)dRtWMin29CFitrbullr1IU
Threshold Inquiry
When did the aUeged incident or action occur
bull Did it occur within the last 45 calendar days
What hann have you suffered
bull Must be specific
8
u
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Stages of an Federal Agency EEO Complaint
INFORMAL COMPLAINT STAGE Contact Agency EEO Office or Agent
liiJ Counoeling Sagc bull 30 d
bull Counsdmg bull Pact Flftdanc bull lnformalllnoW bull lOdopbull 1DRIMWOOft bull I( ADR ilbullciKt-d tlw prnod 11 lltrndcd to up to
lOUJ1 bull Nooce of Right to fbulllbull complgtnt th thbull
agmlty bull Compwn h IS dbullp to file fomul
compbmt
FEDERAL AGENCY EEO COMPLAINT PROCESS
Formal Stage
Acccp12bility Stogc
bull File fonnl complbnt th OE O
bull Accept DismiSS
bull Asstgn for In csttgtbullon
May 9 201 4
9
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
EEO COMPLAINT PROCESS
bull lnvcsligativc S11gc
bull Potential Methods aOn-Sut bRcqu to for
Producbon
cAffidgtgtto
d Vampdto confere-nce
bull Timcfnme -180 dafl (r ltbulltendo or amondnl)
EEO COMPLAINT PROCESS El crion Stage
bull Advisement of RghtJ Issued
bull CompiUnmt mgtkcs election - 30 doys
bull eEOC Heanng or bull FlmlltgenCJ Dtruion
Both drcisions cn br appralrd
Most Common Reasons For Dismissal
bull Time Frames
bull Initial EEO Contact bull 45 Calendar Ooys
bull Filing Fonnal Comphunts bull IS Calcndbullr Days after
rcccopt of Notocc of Right to File
10
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
continued bull Failure to State a Claim
bull Un3ble to show you 3re hanned by the m3tter complained of
bull fail to allege a protecrie bam of discnmin3non
Identical claim
bull Has already been brought before the Discrimin3non Complaint Process
bull Has bcen rtiscd in 3 negoti3tcd grievance procedure for most agencies
bull MSPB 3ppeal
PRIVATE
SECTOR
PROCESS
INTAKE
bull InquiryIntake Questionnaire (bring or mail
bull Letter or complaint (mail or in person) -No Attorney needed- Must be signed
bull EEOC may request more information
bull Statute of Limitation- 180 days unless State or Local Law extends to 300 days
bull Age Discrimination eCtended only if STATE law eCtends it
May 9 20 1 4
11
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Service to Employer
bull Vtthin 10 days notice and copy of charge sent to employer
bull Employer invited to send Statement of Position and sometime respond to EEOC Request for Information
bull EEOC has subpoena power
bull Some cases may be invited to mediation- Both must agree
Mediation
bull Mediation scheduled
bull Parties meet with mediator bull FirewaU exists
bull Tries to reach voluntary settlement
bull No determination of right or wrong- no cause determination made
bull lIediated settlement is an agreement reach by the parties but to which the EEOC is also a signer
bull Compliance may be enforced by the EEOC
Investigation
bull If not resolved by mediation assigned to investigator
bull Investigation may include
a On-Sire visits andor Interviews
b Requests for Information
c Fact finding conference
d Evidence Analysis
1 2
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Determination bull Based upon the evidence violation found or not
found
bull If no violation or at any srage if no juriroiction or if EEOC probably cannot reach determination case closed and Notice of Right to Sue i sued- NRTS may be requested after 90 days
bull If violation found conciliation is attempted
bull If no settlement Notice of Right to Sue Issued or EEOC decides to litigate
bull Reconsideration may be requ ted
FAIR EMPLOYMENT PRACTICE AGENCIES
bullWorkshare Agreement
bullSubstantial Weight Review
PUBLIC SECTOR
PROCESS
13
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
EEOC Public Sector Process
middotSame EEOC Intake Investigation and Cause Determination process
middotEEOC forwards its determination to the Department of Justice (DOJ) which issues the Notice of Right to Sue
bullLitigation of Public Sector Charges determined and conducted by DOJ
EEOC Public Sector Process
middotEEOCs Strategic Plan requires Internal and External Integration of Resources
bullCollaboration of efforts and resources by EEOC and DOJ regarding Public Sector Investigations
Other Partnerships
bullInternal and External Integration of Resources has also fostered EEOC collaboration on public and Private Sector maners with
middotDOL (OFCCP amp WampH)
bullFair Employment Practice Agencies
bullAnd others who arc a part of the multi-pronged national equal employment law enforcement effort
14
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
SYSTEMIC
INVESTIGATIONS
EEOC STRATEGIC FOCUS
Basis for Systemic Enforcement
Systemic cases can be brought under any of the statutes enforced by the EEOC Including ADAAA GINA and PDA
Strategic Plan to have Sustainable Impact Most effective way to reduce and deter discriminatory practices In the workplace
Systemic cases usually Involve
company-wide practices or policies
The EEOC may request and analyze
extensive electronic data and numerous
documents conduct statistical analyses and
interview witnesses and class members
1 5
D isparate
(directed targeted)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Two Types of Systemic Discrimination Cases
bull t Systemic Disparate Treaunent Cases
bull 2 Systemic Disparate Impact Cases
Treatment Cases
bull where the discrimination was Intentional or
bull Disparate treatment cases are the most common type of cases
Three Main Types of Systemic Disparate Treatment Cases
(1) discriminatory treatment In employment
decisions such as hiring promotion and
discharge
eg An employer refuses to hire or promote
people based on their disability
May 9 20 1 4
16
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Three Main Types of Systemic Disparate Treatment Cases
(2) discriminatory rules practices and
policies eg cases where an employer has a policy practice
or rule that on its face treats people In a protected
group differendy than others such as a rule that an
employee who is returning to work from a
Reasonabfe Accommodation leave of absence must
re-test to qualify to do a job
Three Main Types of Systemic Disparate Treatment Cases
(3) harassment
eg harassment based upon corporate or workplace culture or practice or which are codified in policies or practice
Examples of Disparate Treatment In Employment Decisions
bull a hotel managers statement that he does not hire disabled applicants because they miss too much rime off work
bull a companys statement to a temporary placement agency that it wants fit people for its office positions jobs
17
engtge complained
company VII
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Examples of Disparate Treatment in Employment Decisions
bull notations on employment application$ indicating the suspected inability based upon a perceived disability of the applicant
bull a retail store regional managers statement that hiring people with disabilities as greeters would depress customers
bull A hiring managers instructions to not hire anyone with limited mobility for sales positions
Examples of Disparate Treatment In Discriminatory Rule or Policy
bull An employer has a policy prohibiting pregnant women from working in jobs that the employer believes might pose a risk to the pregnancy This policy is iUcral unless the employer can demonstrate that being male or a non-pregnant female is a bona fide occupational qualification (BFOQ) In other words the employer would have to show that sex or pregnancy actually interferes with the employees abiltty to do the job The BFOQ defense is a very narrow exception to Title VII which employers can rarely establish
Examples of Disparate Treatment In Systemic Harassment- Sex
bull On a daily basis the male managers of a company made degrading comments to the fem ale employees abOut their bodies asked them questions abOut their ex lives and requested that they in sexual activiues Some female employees about the xual conduct to the human resources department but the conduct continued The managers claim that they were just joking The evidence indJcates that women as a class were subjected to a hostile working environment and that the is liab e for sexual harassment in iolation ofTitle
bull
May 9 20 1 4
1 8
Disparate Impact Cases
procedure policy practice disproportionate
impact
i
employenmplemented physical excludes pplicants
employment have
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull -where an employer has a neutral selection or
that has a adverse on people in a protected group such as a written test that disproportionately excludes all or a particular type of disabled employeesbull
bull
Both Theories May Apply
bull Some c1ses ra se both dispartte trearment and disparate imp1ct issues
bull For exmple if an invesnguion reveals that m a agliry test th1t
disabled job and the test may have been adopted for discriminatory reasons the case could be analyzed under both the wsparote treatment and disparte impact theories
bull Under either theory plaintiffs in discrimination cases mcludin EEOC the burden of proving that discrunination occurred
REMEDIES
bull Disparate Treatment Cases
bull Backpay
bull Reinstatement Instatement or Front Pay
bull Compensatory Damages
bull Punitive Damages
bull Non-Monetary (Afflmlltive Relief)
bull Attorneys Fees and Cost
May 9t 20 1 4
19
Services
University Texas Medical Centerv
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REMEDIES
Disparate Impact Cases
bull Backpay
bull Reinstatement ln tatement or Front Pay
bull Non-Ivlonetaty (Aff=tive Relict)
bull Attorneys Fees and Cost
Word of Caution
Special Issues of proof in ADA and Title VII
Retaliation Claims
Challenges to Standard of Proof
bull Shift in lliCed llotive cases to but for standard of proof
bull Gross v FBL Financial 557 US 167 (2009)-But For in ADEA and Title VII Retaliation
bull of SW 133 S Ct 2517 (2013)-Reaffuming
Groubut for standard in Title VII Rettliation cases
May 9 20 1 4
20
Palmqmst v Shinselo
Srwatka v Rockwel Auromatjon Inc
lewts v Humbolt Accwisition Corv
Pinkerton y Spelm s
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOS IUM
bull Other Coutts extendmg this to ADA cases -bull 8 F3 66 I Ctr 2012) bull
But For in ADA cases implied by chain analysis as follows
- ltehabiLtation Act borrows causation standard from ADA
middot ADA because standard bears a strilung rr mblancc to the ADEA because orbull standard
bull ADEA has been determined by Grou to be a but for standard
bull 591 Fld 57 (7ch Cir 2010)-7 Cir held But For causation standard is rrquircd in ADA cSCs
bull 681 Fld 312 (6ch Cir 202)-6Cir Also applies But For in ADA cases
bull Fifth Circuit - 521 Fld 513 (Sbullbull Cir 2008)-Mixed mauve in 501 cases which incorporues ADA standards But nm to ction 504 ca s whtch requires disabiJty as the sole rrason for adve action
bullADA
bullGINA
bullPDA
bullFMLA
bullWC
Todays Focus
May 9 20 1 4
21
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull ADA bull Equal Employment Opportunity Commission (EEOC)
bull FMLA- Department of Labor (Wage amp Hour Di1ston
bull Wo rken Compensation- Stlte Workers Compensation Commissions
Purpose of the ADA FMLA and Workers Compensation Laws
bull The ADA as mended pmhbits discrimmation llinsc applicants and employees who are dosabled regtrded as disabled or haC a record of doubdny
bull The FM lA sets minimum lcac standards for employees for the binh and n bom can of a chtld placement of bull child for adoption or rosier carr to carr rar m lmmediale funily member th a J(tious health condition and for the employees serious health condo ton
bull Worlun1 Compcnsacion laAS pmide for payment of compensation md rthabilitation for wotkplace in1uries and monom1ze employer habihty
ADA and GINA
May 9 20 1 4
22
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
TWIN STATUTES
ADA Here and Now
ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability- Conditions that exist now
GINA LOOKING DOWN THE ROAD
bull based on genetic information and not on the basis of a manifested condition - Potential Conditions
23
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
RECAP ADA Overview
The Americans with
Disabilities Act
Amendments Act of 2008
(ADAAA) EEOCs Final Regulations
ADA Definition of Disability
Basic 3-part definition remains the same
bull A physical or mental impairment that substantially limits a major life activity
bull Arecord of such an impairment
bull Being regarded as having such an impairment
However Congress changed the meanings of lcey terms used In these definitions
24
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Major Life Activities
bull Statute and EEOC regulations provide two non-exhaustive lists of major life activities
bull First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts
List of major life activities is not exhaustive
bull liftingbullcaring for oneself bullbendingbull performing bull speakingbull manual tasks bullbreathingbullseeing bulllearningbull hearing bull readingbull eating bullconcentratlngbull sleeping bullthinkingbullwalking bull communicatingbullstanding bullInteracting with bullsitting bull othersbullreaching bulland working
Major Life Activities Include Major Bodily Functions
bull New category of major life activities
bull Will make it easier for individuals with many different types of impairments to establish disability
25
would
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Major Bodily Functions
bull Functions of the immune system special sense organs and skin normal cell growth digestive genitourinary bowel bladder neurological brain respiratory circulatory cardiovascular endocrine hemic lymphatic musculoskeletal reproductive
bull Operations of an individual organ within a body system such as the operation of kidney liver or pancreas
Impairments That Are Episodic or In Remission
bull Remission Vill be prong one of disabilities ifi substantially limits a major life activity
WHEN ACTIVE bull Cancer is an example of impairment that may be in
remission
bull The Employer may balance the field during the reasonable accommodation analysis
Impairments That Are Episodic or In Remission
bull Episodic Impairments that ma) not affect a person 247 but which periodically flare up
bull eg epilepsy hypertension asthma diabetes major depressive disorder bipolar disorder schizophrenia
May 9 201 4
26
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
What Employers Are Covered
bull Private Employers (15 or more employees) bull Educational Institutions bull Labor Organizations bull Joint LabormiddotManagement Apprenticeship
and Training Comminees (Tide VII amp ADA)
bull Employment Agencies Serving Covered Employers
bull State and Local Governments
Which Individuals are Protected
bull An employee
bull A temporary worker
bull A job applicant
bull A former employee
bull Undocumented workers
Employment Discrimination Laws
The EEOC enforce m number offederal laWll prohibiting employment di1crimination including
Title VII of the Civil Righcs Act of 1964 (fide VII) Age DiOltrimingtlion in Employment Act of 1967 (ADEll)
bull Equal Pbully Act of 1963 EPA) bull Lilly Lcdbcucr Fair Pgty Act of 009 bull Tide I amp V of the Americns vrh Diubilitics Act of 990
(ADA) ADA Amendments Act of 2008 (ADAAA)
bull Title II of the Generic lnformgtlion Nondiscrirninotoon Act of 2008(GINA)
bull Prcgnoncy Discriminorion Act of 1978
5
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Discrimination Can Occur in the FoUowing Scenarios
bull HireFire
bull Wages
bull PromotionDemolion
bull Harassment
bull Different Tenns and Conditions
bull Assignments Benefits Leave Training
bull Failure to Accommodate for Disability
bull Failure to Accommodate for Religion
Retaliation Prohibited by All Statutes
bull No Stand Alone Retaliation Statute
bull It is unlawful to penalize punish or deny an employment benefit because that penon opposed discrimination or participated in any way in tbe invebulltigation o( a charge
Retaliation
bull Example in the Disability Context-
A hotel room aucndant ccovcs a asonable accommodation which allows her to have a laundry auendant step into a room she has cleaned to collect ptles of uscd lmen Her supervisor subsequently move s her from her long standing room assignments and assign1 her to clean room and guest suites normally uscd by wcddmg auendees and which= known to req stgntficantly more cleaning
Proof nuy be by direct evidence (nuemcnu) or circumstantial evidence (eg ttnuna
May 9 20 1 4
6
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEO Complaint
and Investigation
Process
EEO Complaint and Investigation Processes
Three Different Processes
bull 1 Federal Sector Process
bull 2 Private Sector Process
bull 3 Public Sector Process
FEDERAL
SECTOR
PROCESS
7
Ucbull Color
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Federal Sector EEO Complaint Process
bull Regulations provide for the acceptance of complaints from
bull Current employees bull Fonner emplo)middotees bull Applicants for employment
Basis for Filing a Complaint of
Discrimination
Rdogion tgc(HO) National Origin Disability (MtmliPhysical) Sex (gender sexual hamsmcnl scxual ontnution) Reprisal
bullbullaaot---_tbullMd Dillwbullttorbullca bullbullpfDCftMd dn-IM EEOCbull runlurn (ot COpl-tof ow-_ Bd- Snel OWcoo(EOC Otdn No 001)dRtWMin29CFitrbullr1IU
Threshold Inquiry
When did the aUeged incident or action occur
bull Did it occur within the last 45 calendar days
What hann have you suffered
bull Must be specific
8
u
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Stages of an Federal Agency EEO Complaint
INFORMAL COMPLAINT STAGE Contact Agency EEO Office or Agent
liiJ Counoeling Sagc bull 30 d
bull Counsdmg bull Pact Flftdanc bull lnformalllnoW bull lOdopbull 1DRIMWOOft bull I( ADR ilbullciKt-d tlw prnod 11 lltrndcd to up to
lOUJ1 bull Nooce of Right to fbulllbull complgtnt th thbull
agmlty bull Compwn h IS dbullp to file fomul
compbmt
FEDERAL AGENCY EEO COMPLAINT PROCESS
Formal Stage
Acccp12bility Stogc
bull File fonnl complbnt th OE O
bull Accept DismiSS
bull Asstgn for In csttgtbullon
May 9 201 4
9
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
EEO COMPLAINT PROCESS
bull lnvcsligativc S11gc
bull Potential Methods aOn-Sut bRcqu to for
Producbon
cAffidgtgtto
d Vampdto confere-nce
bull Timcfnme -180 dafl (r ltbulltendo or amondnl)
EEO COMPLAINT PROCESS El crion Stage
bull Advisement of RghtJ Issued
bull CompiUnmt mgtkcs election - 30 doys
bull eEOC Heanng or bull FlmlltgenCJ Dtruion
Both drcisions cn br appralrd
Most Common Reasons For Dismissal
bull Time Frames
bull Initial EEO Contact bull 45 Calendar Ooys
bull Filing Fonnal Comphunts bull IS Calcndbullr Days after
rcccopt of Notocc of Right to File
10
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
continued bull Failure to State a Claim
bull Un3ble to show you 3re hanned by the m3tter complained of
bull fail to allege a protecrie bam of discnmin3non
Identical claim
bull Has already been brought before the Discrimin3non Complaint Process
bull Has bcen rtiscd in 3 negoti3tcd grievance procedure for most agencies
bull MSPB 3ppeal
PRIVATE
SECTOR
PROCESS
INTAKE
bull InquiryIntake Questionnaire (bring or mail
bull Letter or complaint (mail or in person) -No Attorney needed- Must be signed
bull EEOC may request more information
bull Statute of Limitation- 180 days unless State or Local Law extends to 300 days
bull Age Discrimination eCtended only if STATE law eCtends it
May 9 20 1 4
11
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Service to Employer
bull Vtthin 10 days notice and copy of charge sent to employer
bull Employer invited to send Statement of Position and sometime respond to EEOC Request for Information
bull EEOC has subpoena power
bull Some cases may be invited to mediation- Both must agree
Mediation
bull Mediation scheduled
bull Parties meet with mediator bull FirewaU exists
bull Tries to reach voluntary settlement
bull No determination of right or wrong- no cause determination made
bull lIediated settlement is an agreement reach by the parties but to which the EEOC is also a signer
bull Compliance may be enforced by the EEOC
Investigation
bull If not resolved by mediation assigned to investigator
bull Investigation may include
a On-Sire visits andor Interviews
b Requests for Information
c Fact finding conference
d Evidence Analysis
1 2
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Determination bull Based upon the evidence violation found or not
found
bull If no violation or at any srage if no juriroiction or if EEOC probably cannot reach determination case closed and Notice of Right to Sue i sued- NRTS may be requested after 90 days
bull If violation found conciliation is attempted
bull If no settlement Notice of Right to Sue Issued or EEOC decides to litigate
bull Reconsideration may be requ ted
FAIR EMPLOYMENT PRACTICE AGENCIES
bullWorkshare Agreement
bullSubstantial Weight Review
PUBLIC SECTOR
PROCESS
13
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
EEOC Public Sector Process
middotSame EEOC Intake Investigation and Cause Determination process
middotEEOC forwards its determination to the Department of Justice (DOJ) which issues the Notice of Right to Sue
bullLitigation of Public Sector Charges determined and conducted by DOJ
EEOC Public Sector Process
middotEEOCs Strategic Plan requires Internal and External Integration of Resources
bullCollaboration of efforts and resources by EEOC and DOJ regarding Public Sector Investigations
Other Partnerships
bullInternal and External Integration of Resources has also fostered EEOC collaboration on public and Private Sector maners with
middotDOL (OFCCP amp WampH)
bullFair Employment Practice Agencies
bullAnd others who arc a part of the multi-pronged national equal employment law enforcement effort
14
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
SYSTEMIC
INVESTIGATIONS
EEOC STRATEGIC FOCUS
Basis for Systemic Enforcement
Systemic cases can be brought under any of the statutes enforced by the EEOC Including ADAAA GINA and PDA
Strategic Plan to have Sustainable Impact Most effective way to reduce and deter discriminatory practices In the workplace
Systemic cases usually Involve
company-wide practices or policies
The EEOC may request and analyze
extensive electronic data and numerous
documents conduct statistical analyses and
interview witnesses and class members
1 5
D isparate
(directed targeted)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Two Types of Systemic Discrimination Cases
bull t Systemic Disparate Treaunent Cases
bull 2 Systemic Disparate Impact Cases
Treatment Cases
bull where the discrimination was Intentional or
bull Disparate treatment cases are the most common type of cases
Three Main Types of Systemic Disparate Treatment Cases
(1) discriminatory treatment In employment
decisions such as hiring promotion and
discharge
eg An employer refuses to hire or promote
people based on their disability
May 9 20 1 4
16
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Three Main Types of Systemic Disparate Treatment Cases
(2) discriminatory rules practices and
policies eg cases where an employer has a policy practice
or rule that on its face treats people In a protected
group differendy than others such as a rule that an
employee who is returning to work from a
Reasonabfe Accommodation leave of absence must
re-test to qualify to do a job
Three Main Types of Systemic Disparate Treatment Cases
(3) harassment
eg harassment based upon corporate or workplace culture or practice or which are codified in policies or practice
Examples of Disparate Treatment In Employment Decisions
bull a hotel managers statement that he does not hire disabled applicants because they miss too much rime off work
bull a companys statement to a temporary placement agency that it wants fit people for its office positions jobs
17
engtge complained
company VII
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Examples of Disparate Treatment in Employment Decisions
bull notations on employment application$ indicating the suspected inability based upon a perceived disability of the applicant
bull a retail store regional managers statement that hiring people with disabilities as greeters would depress customers
bull A hiring managers instructions to not hire anyone with limited mobility for sales positions
Examples of Disparate Treatment In Discriminatory Rule or Policy
bull An employer has a policy prohibiting pregnant women from working in jobs that the employer believes might pose a risk to the pregnancy This policy is iUcral unless the employer can demonstrate that being male or a non-pregnant female is a bona fide occupational qualification (BFOQ) In other words the employer would have to show that sex or pregnancy actually interferes with the employees abiltty to do the job The BFOQ defense is a very narrow exception to Title VII which employers can rarely establish
Examples of Disparate Treatment In Systemic Harassment- Sex
bull On a daily basis the male managers of a company made degrading comments to the fem ale employees abOut their bodies asked them questions abOut their ex lives and requested that they in sexual activiues Some female employees about the xual conduct to the human resources department but the conduct continued The managers claim that they were just joking The evidence indJcates that women as a class were subjected to a hostile working environment and that the is liab e for sexual harassment in iolation ofTitle
bull
May 9 20 1 4
1 8
Disparate Impact Cases
procedure policy practice disproportionate
impact
i
employenmplemented physical excludes pplicants
employment have
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull -where an employer has a neutral selection or
that has a adverse on people in a protected group such as a written test that disproportionately excludes all or a particular type of disabled employeesbull
bull
Both Theories May Apply
bull Some c1ses ra se both dispartte trearment and disparate imp1ct issues
bull For exmple if an invesnguion reveals that m a agliry test th1t
disabled job and the test may have been adopted for discriminatory reasons the case could be analyzed under both the wsparote treatment and disparte impact theories
bull Under either theory plaintiffs in discrimination cases mcludin EEOC the burden of proving that discrunination occurred
REMEDIES
bull Disparate Treatment Cases
bull Backpay
bull Reinstatement Instatement or Front Pay
bull Compensatory Damages
bull Punitive Damages
bull Non-Monetary (Afflmlltive Relief)
bull Attorneys Fees and Cost
May 9t 20 1 4
19
Services
University Texas Medical Centerv
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REMEDIES
Disparate Impact Cases
bull Backpay
bull Reinstatement ln tatement or Front Pay
bull Non-Ivlonetaty (Aff=tive Relict)
bull Attorneys Fees and Cost
Word of Caution
Special Issues of proof in ADA and Title VII
Retaliation Claims
Challenges to Standard of Proof
bull Shift in lliCed llotive cases to but for standard of proof
bull Gross v FBL Financial 557 US 167 (2009)-But For in ADEA and Title VII Retaliation
bull of SW 133 S Ct 2517 (2013)-Reaffuming
Groubut for standard in Title VII Rettliation cases
May 9 20 1 4
20
Palmqmst v Shinselo
Srwatka v Rockwel Auromatjon Inc
lewts v Humbolt Accwisition Corv
Pinkerton y Spelm s
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOS IUM
bull Other Coutts extendmg this to ADA cases -bull 8 F3 66 I Ctr 2012) bull
But For in ADA cases implied by chain analysis as follows
- ltehabiLtation Act borrows causation standard from ADA
middot ADA because standard bears a strilung rr mblancc to the ADEA because orbull standard
bull ADEA has been determined by Grou to be a but for standard
bull 591 Fld 57 (7ch Cir 2010)-7 Cir held But For causation standard is rrquircd in ADA cSCs
bull 681 Fld 312 (6ch Cir 202)-6Cir Also applies But For in ADA cases
bull Fifth Circuit - 521 Fld 513 (Sbullbull Cir 2008)-Mixed mauve in 501 cases which incorporues ADA standards But nm to ction 504 ca s whtch requires disabiJty as the sole rrason for adve action
bullADA
bullGINA
bullPDA
bullFMLA
bullWC
Todays Focus
May 9 20 1 4
21
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull ADA bull Equal Employment Opportunity Commission (EEOC)
bull FMLA- Department of Labor (Wage amp Hour Di1ston
bull Wo rken Compensation- Stlte Workers Compensation Commissions
Purpose of the ADA FMLA and Workers Compensation Laws
bull The ADA as mended pmhbits discrimmation llinsc applicants and employees who are dosabled regtrded as disabled or haC a record of doubdny
bull The FM lA sets minimum lcac standards for employees for the binh and n bom can of a chtld placement of bull child for adoption or rosier carr to carr rar m lmmediale funily member th a J(tious health condition and for the employees serious health condo ton
bull Worlun1 Compcnsacion laAS pmide for payment of compensation md rthabilitation for wotkplace in1uries and monom1ze employer habihty
ADA and GINA
May 9 20 1 4
22
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
TWIN STATUTES
ADA Here and Now
ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability- Conditions that exist now
GINA LOOKING DOWN THE ROAD
bull based on genetic information and not on the basis of a manifested condition - Potential Conditions
23
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
RECAP ADA Overview
The Americans with
Disabilities Act
Amendments Act of 2008
(ADAAA) EEOCs Final Regulations
ADA Definition of Disability
Basic 3-part definition remains the same
bull A physical or mental impairment that substantially limits a major life activity
bull Arecord of such an impairment
bull Being regarded as having such an impairment
However Congress changed the meanings of lcey terms used In these definitions
24
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Major Life Activities
bull Statute and EEOC regulations provide two non-exhaustive lists of major life activities
bull First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts
List of major life activities is not exhaustive
bull liftingbullcaring for oneself bullbendingbull performing bull speakingbull manual tasks bullbreathingbullseeing bulllearningbull hearing bull readingbull eating bullconcentratlngbull sleeping bullthinkingbullwalking bull communicatingbullstanding bullInteracting with bullsitting bull othersbullreaching bulland working
Major Life Activities Include Major Bodily Functions
bull New category of major life activities
bull Will make it easier for individuals with many different types of impairments to establish disability
25
would
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Major Bodily Functions
bull Functions of the immune system special sense organs and skin normal cell growth digestive genitourinary bowel bladder neurological brain respiratory circulatory cardiovascular endocrine hemic lymphatic musculoskeletal reproductive
bull Operations of an individual organ within a body system such as the operation of kidney liver or pancreas
Impairments That Are Episodic or In Remission
bull Remission Vill be prong one of disabilities ifi substantially limits a major life activity
WHEN ACTIVE bull Cancer is an example of impairment that may be in
remission
bull The Employer may balance the field during the reasonable accommodation analysis
Impairments That Are Episodic or In Remission
bull Episodic Impairments that ma) not affect a person 247 but which periodically flare up
bull eg epilepsy hypertension asthma diabetes major depressive disorder bipolar disorder schizophrenia
May 9 201 4
26
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Discrimination Can Occur in the FoUowing Scenarios
bull HireFire
bull Wages
bull PromotionDemolion
bull Harassment
bull Different Tenns and Conditions
bull Assignments Benefits Leave Training
bull Failure to Accommodate for Disability
bull Failure to Accommodate for Religion
Retaliation Prohibited by All Statutes
bull No Stand Alone Retaliation Statute
bull It is unlawful to penalize punish or deny an employment benefit because that penon opposed discrimination or participated in any way in tbe invebulltigation o( a charge
Retaliation
bull Example in the Disability Context-
A hotel room aucndant ccovcs a asonable accommodation which allows her to have a laundry auendant step into a room she has cleaned to collect ptles of uscd lmen Her supervisor subsequently move s her from her long standing room assignments and assign1 her to clean room and guest suites normally uscd by wcddmg auendees and which= known to req stgntficantly more cleaning
Proof nuy be by direct evidence (nuemcnu) or circumstantial evidence (eg ttnuna
May 9 20 1 4
6
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEO Complaint
and Investigation
Process
EEO Complaint and Investigation Processes
Three Different Processes
bull 1 Federal Sector Process
bull 2 Private Sector Process
bull 3 Public Sector Process
FEDERAL
SECTOR
PROCESS
7
Ucbull Color
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Federal Sector EEO Complaint Process
bull Regulations provide for the acceptance of complaints from
bull Current employees bull Fonner emplo)middotees bull Applicants for employment
Basis for Filing a Complaint of
Discrimination
Rdogion tgc(HO) National Origin Disability (MtmliPhysical) Sex (gender sexual hamsmcnl scxual ontnution) Reprisal
bullbullaaot---_tbullMd Dillwbullttorbullca bullbullpfDCftMd dn-IM EEOCbull runlurn (ot COpl-tof ow-_ Bd- Snel OWcoo(EOC Otdn No 001)dRtWMin29CFitrbullr1IU
Threshold Inquiry
When did the aUeged incident or action occur
bull Did it occur within the last 45 calendar days
What hann have you suffered
bull Must be specific
8
u
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Stages of an Federal Agency EEO Complaint
INFORMAL COMPLAINT STAGE Contact Agency EEO Office or Agent
liiJ Counoeling Sagc bull 30 d
bull Counsdmg bull Pact Flftdanc bull lnformalllnoW bull lOdopbull 1DRIMWOOft bull I( ADR ilbullciKt-d tlw prnod 11 lltrndcd to up to
lOUJ1 bull Nooce of Right to fbulllbull complgtnt th thbull
agmlty bull Compwn h IS dbullp to file fomul
compbmt
FEDERAL AGENCY EEO COMPLAINT PROCESS
Formal Stage
Acccp12bility Stogc
bull File fonnl complbnt th OE O
bull Accept DismiSS
bull Asstgn for In csttgtbullon
May 9 201 4
9
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
EEO COMPLAINT PROCESS
bull lnvcsligativc S11gc
bull Potential Methods aOn-Sut bRcqu to for
Producbon
cAffidgtgtto
d Vampdto confere-nce
bull Timcfnme -180 dafl (r ltbulltendo or amondnl)
EEO COMPLAINT PROCESS El crion Stage
bull Advisement of RghtJ Issued
bull CompiUnmt mgtkcs election - 30 doys
bull eEOC Heanng or bull FlmlltgenCJ Dtruion
Both drcisions cn br appralrd
Most Common Reasons For Dismissal
bull Time Frames
bull Initial EEO Contact bull 45 Calendar Ooys
bull Filing Fonnal Comphunts bull IS Calcndbullr Days after
rcccopt of Notocc of Right to File
10
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
continued bull Failure to State a Claim
bull Un3ble to show you 3re hanned by the m3tter complained of
bull fail to allege a protecrie bam of discnmin3non
Identical claim
bull Has already been brought before the Discrimin3non Complaint Process
bull Has bcen rtiscd in 3 negoti3tcd grievance procedure for most agencies
bull MSPB 3ppeal
PRIVATE
SECTOR
PROCESS
INTAKE
bull InquiryIntake Questionnaire (bring or mail
bull Letter or complaint (mail or in person) -No Attorney needed- Must be signed
bull EEOC may request more information
bull Statute of Limitation- 180 days unless State or Local Law extends to 300 days
bull Age Discrimination eCtended only if STATE law eCtends it
May 9 20 1 4
11
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Service to Employer
bull Vtthin 10 days notice and copy of charge sent to employer
bull Employer invited to send Statement of Position and sometime respond to EEOC Request for Information
bull EEOC has subpoena power
bull Some cases may be invited to mediation- Both must agree
Mediation
bull Mediation scheduled
bull Parties meet with mediator bull FirewaU exists
bull Tries to reach voluntary settlement
bull No determination of right or wrong- no cause determination made
bull lIediated settlement is an agreement reach by the parties but to which the EEOC is also a signer
bull Compliance may be enforced by the EEOC
Investigation
bull If not resolved by mediation assigned to investigator
bull Investigation may include
a On-Sire visits andor Interviews
b Requests for Information
c Fact finding conference
d Evidence Analysis
1 2
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Determination bull Based upon the evidence violation found or not
found
bull If no violation or at any srage if no juriroiction or if EEOC probably cannot reach determination case closed and Notice of Right to Sue i sued- NRTS may be requested after 90 days
bull If violation found conciliation is attempted
bull If no settlement Notice of Right to Sue Issued or EEOC decides to litigate
bull Reconsideration may be requ ted
FAIR EMPLOYMENT PRACTICE AGENCIES
bullWorkshare Agreement
bullSubstantial Weight Review
PUBLIC SECTOR
PROCESS
13
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
EEOC Public Sector Process
middotSame EEOC Intake Investigation and Cause Determination process
middotEEOC forwards its determination to the Department of Justice (DOJ) which issues the Notice of Right to Sue
bullLitigation of Public Sector Charges determined and conducted by DOJ
EEOC Public Sector Process
middotEEOCs Strategic Plan requires Internal and External Integration of Resources
bullCollaboration of efforts and resources by EEOC and DOJ regarding Public Sector Investigations
Other Partnerships
bullInternal and External Integration of Resources has also fostered EEOC collaboration on public and Private Sector maners with
middotDOL (OFCCP amp WampH)
bullFair Employment Practice Agencies
bullAnd others who arc a part of the multi-pronged national equal employment law enforcement effort
14
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
SYSTEMIC
INVESTIGATIONS
EEOC STRATEGIC FOCUS
Basis for Systemic Enforcement
Systemic cases can be brought under any of the statutes enforced by the EEOC Including ADAAA GINA and PDA
Strategic Plan to have Sustainable Impact Most effective way to reduce and deter discriminatory practices In the workplace
Systemic cases usually Involve
company-wide practices or policies
The EEOC may request and analyze
extensive electronic data and numerous
documents conduct statistical analyses and
interview witnesses and class members
1 5
D isparate
(directed targeted)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Two Types of Systemic Discrimination Cases
bull t Systemic Disparate Treaunent Cases
bull 2 Systemic Disparate Impact Cases
Treatment Cases
bull where the discrimination was Intentional or
bull Disparate treatment cases are the most common type of cases
Three Main Types of Systemic Disparate Treatment Cases
(1) discriminatory treatment In employment
decisions such as hiring promotion and
discharge
eg An employer refuses to hire or promote
people based on their disability
May 9 20 1 4
16
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Three Main Types of Systemic Disparate Treatment Cases
(2) discriminatory rules practices and
policies eg cases where an employer has a policy practice
or rule that on its face treats people In a protected
group differendy than others such as a rule that an
employee who is returning to work from a
Reasonabfe Accommodation leave of absence must
re-test to qualify to do a job
Three Main Types of Systemic Disparate Treatment Cases
(3) harassment
eg harassment based upon corporate or workplace culture or practice or which are codified in policies or practice
Examples of Disparate Treatment In Employment Decisions
bull a hotel managers statement that he does not hire disabled applicants because they miss too much rime off work
bull a companys statement to a temporary placement agency that it wants fit people for its office positions jobs
17
engtge complained
company VII
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Examples of Disparate Treatment in Employment Decisions
bull notations on employment application$ indicating the suspected inability based upon a perceived disability of the applicant
bull a retail store regional managers statement that hiring people with disabilities as greeters would depress customers
bull A hiring managers instructions to not hire anyone with limited mobility for sales positions
Examples of Disparate Treatment In Discriminatory Rule or Policy
bull An employer has a policy prohibiting pregnant women from working in jobs that the employer believes might pose a risk to the pregnancy This policy is iUcral unless the employer can demonstrate that being male or a non-pregnant female is a bona fide occupational qualification (BFOQ) In other words the employer would have to show that sex or pregnancy actually interferes with the employees abiltty to do the job The BFOQ defense is a very narrow exception to Title VII which employers can rarely establish
Examples of Disparate Treatment In Systemic Harassment- Sex
bull On a daily basis the male managers of a company made degrading comments to the fem ale employees abOut their bodies asked them questions abOut their ex lives and requested that they in sexual activiues Some female employees about the xual conduct to the human resources department but the conduct continued The managers claim that they were just joking The evidence indJcates that women as a class were subjected to a hostile working environment and that the is liab e for sexual harassment in iolation ofTitle
bull
May 9 20 1 4
1 8
Disparate Impact Cases
procedure policy practice disproportionate
impact
i
employenmplemented physical excludes pplicants
employment have
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull -where an employer has a neutral selection or
that has a adverse on people in a protected group such as a written test that disproportionately excludes all or a particular type of disabled employeesbull
bull
Both Theories May Apply
bull Some c1ses ra se both dispartte trearment and disparate imp1ct issues
bull For exmple if an invesnguion reveals that m a agliry test th1t
disabled job and the test may have been adopted for discriminatory reasons the case could be analyzed under both the wsparote treatment and disparte impact theories
bull Under either theory plaintiffs in discrimination cases mcludin EEOC the burden of proving that discrunination occurred
REMEDIES
bull Disparate Treatment Cases
bull Backpay
bull Reinstatement Instatement or Front Pay
bull Compensatory Damages
bull Punitive Damages
bull Non-Monetary (Afflmlltive Relief)
bull Attorneys Fees and Cost
May 9t 20 1 4
19
Services
University Texas Medical Centerv
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REMEDIES
Disparate Impact Cases
bull Backpay
bull Reinstatement ln tatement or Front Pay
bull Non-Ivlonetaty (Aff=tive Relict)
bull Attorneys Fees and Cost
Word of Caution
Special Issues of proof in ADA and Title VII
Retaliation Claims
Challenges to Standard of Proof
bull Shift in lliCed llotive cases to but for standard of proof
bull Gross v FBL Financial 557 US 167 (2009)-But For in ADEA and Title VII Retaliation
bull of SW 133 S Ct 2517 (2013)-Reaffuming
Groubut for standard in Title VII Rettliation cases
May 9 20 1 4
20
Palmqmst v Shinselo
Srwatka v Rockwel Auromatjon Inc
lewts v Humbolt Accwisition Corv
Pinkerton y Spelm s
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOS IUM
bull Other Coutts extendmg this to ADA cases -bull 8 F3 66 I Ctr 2012) bull
But For in ADA cases implied by chain analysis as follows
- ltehabiLtation Act borrows causation standard from ADA
middot ADA because standard bears a strilung rr mblancc to the ADEA because orbull standard
bull ADEA has been determined by Grou to be a but for standard
bull 591 Fld 57 (7ch Cir 2010)-7 Cir held But For causation standard is rrquircd in ADA cSCs
bull 681 Fld 312 (6ch Cir 202)-6Cir Also applies But For in ADA cases
bull Fifth Circuit - 521 Fld 513 (Sbullbull Cir 2008)-Mixed mauve in 501 cases which incorporues ADA standards But nm to ction 504 ca s whtch requires disabiJty as the sole rrason for adve action
bullADA
bullGINA
bullPDA
bullFMLA
bullWC
Todays Focus
May 9 20 1 4
21
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull ADA bull Equal Employment Opportunity Commission (EEOC)
bull FMLA- Department of Labor (Wage amp Hour Di1ston
bull Wo rken Compensation- Stlte Workers Compensation Commissions
Purpose of the ADA FMLA and Workers Compensation Laws
bull The ADA as mended pmhbits discrimmation llinsc applicants and employees who are dosabled regtrded as disabled or haC a record of doubdny
bull The FM lA sets minimum lcac standards for employees for the binh and n bom can of a chtld placement of bull child for adoption or rosier carr to carr rar m lmmediale funily member th a J(tious health condition and for the employees serious health condo ton
bull Worlun1 Compcnsacion laAS pmide for payment of compensation md rthabilitation for wotkplace in1uries and monom1ze employer habihty
ADA and GINA
May 9 20 1 4
22
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
TWIN STATUTES
ADA Here and Now
ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability- Conditions that exist now
GINA LOOKING DOWN THE ROAD
bull based on genetic information and not on the basis of a manifested condition - Potential Conditions
23
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
RECAP ADA Overview
The Americans with
Disabilities Act
Amendments Act of 2008
(ADAAA) EEOCs Final Regulations
ADA Definition of Disability
Basic 3-part definition remains the same
bull A physical or mental impairment that substantially limits a major life activity
bull Arecord of such an impairment
bull Being regarded as having such an impairment
However Congress changed the meanings of lcey terms used In these definitions
24
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Major Life Activities
bull Statute and EEOC regulations provide two non-exhaustive lists of major life activities
bull First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts
List of major life activities is not exhaustive
bull liftingbullcaring for oneself bullbendingbull performing bull speakingbull manual tasks bullbreathingbullseeing bulllearningbull hearing bull readingbull eating bullconcentratlngbull sleeping bullthinkingbullwalking bull communicatingbullstanding bullInteracting with bullsitting bull othersbullreaching bulland working
Major Life Activities Include Major Bodily Functions
bull New category of major life activities
bull Will make it easier for individuals with many different types of impairments to establish disability
25
would
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Major Bodily Functions
bull Functions of the immune system special sense organs and skin normal cell growth digestive genitourinary bowel bladder neurological brain respiratory circulatory cardiovascular endocrine hemic lymphatic musculoskeletal reproductive
bull Operations of an individual organ within a body system such as the operation of kidney liver or pancreas
Impairments That Are Episodic or In Remission
bull Remission Vill be prong one of disabilities ifi substantially limits a major life activity
WHEN ACTIVE bull Cancer is an example of impairment that may be in
remission
bull The Employer may balance the field during the reasonable accommodation analysis
Impairments That Are Episodic or In Remission
bull Episodic Impairments that ma) not affect a person 247 but which periodically flare up
bull eg epilepsy hypertension asthma diabetes major depressive disorder bipolar disorder schizophrenia
May 9 201 4
26
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEO Complaint
and Investigation
Process
EEO Complaint and Investigation Processes
Three Different Processes
bull 1 Federal Sector Process
bull 2 Private Sector Process
bull 3 Public Sector Process
FEDERAL
SECTOR
PROCESS
7
Ucbull Color
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Federal Sector EEO Complaint Process
bull Regulations provide for the acceptance of complaints from
bull Current employees bull Fonner emplo)middotees bull Applicants for employment
Basis for Filing a Complaint of
Discrimination
Rdogion tgc(HO) National Origin Disability (MtmliPhysical) Sex (gender sexual hamsmcnl scxual ontnution) Reprisal
bullbullaaot---_tbullMd Dillwbullttorbullca bullbullpfDCftMd dn-IM EEOCbull runlurn (ot COpl-tof ow-_ Bd- Snel OWcoo(EOC Otdn No 001)dRtWMin29CFitrbullr1IU
Threshold Inquiry
When did the aUeged incident or action occur
bull Did it occur within the last 45 calendar days
What hann have you suffered
bull Must be specific
8
u
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Stages of an Federal Agency EEO Complaint
INFORMAL COMPLAINT STAGE Contact Agency EEO Office or Agent
liiJ Counoeling Sagc bull 30 d
bull Counsdmg bull Pact Flftdanc bull lnformalllnoW bull lOdopbull 1DRIMWOOft bull I( ADR ilbullciKt-d tlw prnod 11 lltrndcd to up to
lOUJ1 bull Nooce of Right to fbulllbull complgtnt th thbull
agmlty bull Compwn h IS dbullp to file fomul
compbmt
FEDERAL AGENCY EEO COMPLAINT PROCESS
Formal Stage
Acccp12bility Stogc
bull File fonnl complbnt th OE O
bull Accept DismiSS
bull Asstgn for In csttgtbullon
May 9 201 4
9
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
EEO COMPLAINT PROCESS
bull lnvcsligativc S11gc
bull Potential Methods aOn-Sut bRcqu to for
Producbon
cAffidgtgtto
d Vampdto confere-nce
bull Timcfnme -180 dafl (r ltbulltendo or amondnl)
EEO COMPLAINT PROCESS El crion Stage
bull Advisement of RghtJ Issued
bull CompiUnmt mgtkcs election - 30 doys
bull eEOC Heanng or bull FlmlltgenCJ Dtruion
Both drcisions cn br appralrd
Most Common Reasons For Dismissal
bull Time Frames
bull Initial EEO Contact bull 45 Calendar Ooys
bull Filing Fonnal Comphunts bull IS Calcndbullr Days after
rcccopt of Notocc of Right to File
10
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
continued bull Failure to State a Claim
bull Un3ble to show you 3re hanned by the m3tter complained of
bull fail to allege a protecrie bam of discnmin3non
Identical claim
bull Has already been brought before the Discrimin3non Complaint Process
bull Has bcen rtiscd in 3 negoti3tcd grievance procedure for most agencies
bull MSPB 3ppeal
PRIVATE
SECTOR
PROCESS
INTAKE
bull InquiryIntake Questionnaire (bring or mail
bull Letter or complaint (mail or in person) -No Attorney needed- Must be signed
bull EEOC may request more information
bull Statute of Limitation- 180 days unless State or Local Law extends to 300 days
bull Age Discrimination eCtended only if STATE law eCtends it
May 9 20 1 4
11
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Service to Employer
bull Vtthin 10 days notice and copy of charge sent to employer
bull Employer invited to send Statement of Position and sometime respond to EEOC Request for Information
bull EEOC has subpoena power
bull Some cases may be invited to mediation- Both must agree
Mediation
bull Mediation scheduled
bull Parties meet with mediator bull FirewaU exists
bull Tries to reach voluntary settlement
bull No determination of right or wrong- no cause determination made
bull lIediated settlement is an agreement reach by the parties but to which the EEOC is also a signer
bull Compliance may be enforced by the EEOC
Investigation
bull If not resolved by mediation assigned to investigator
bull Investigation may include
a On-Sire visits andor Interviews
b Requests for Information
c Fact finding conference
d Evidence Analysis
1 2
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Determination bull Based upon the evidence violation found or not
found
bull If no violation or at any srage if no juriroiction or if EEOC probably cannot reach determination case closed and Notice of Right to Sue i sued- NRTS may be requested after 90 days
bull If violation found conciliation is attempted
bull If no settlement Notice of Right to Sue Issued or EEOC decides to litigate
bull Reconsideration may be requ ted
FAIR EMPLOYMENT PRACTICE AGENCIES
bullWorkshare Agreement
bullSubstantial Weight Review
PUBLIC SECTOR
PROCESS
13
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
EEOC Public Sector Process
middotSame EEOC Intake Investigation and Cause Determination process
middotEEOC forwards its determination to the Department of Justice (DOJ) which issues the Notice of Right to Sue
bullLitigation of Public Sector Charges determined and conducted by DOJ
EEOC Public Sector Process
middotEEOCs Strategic Plan requires Internal and External Integration of Resources
bullCollaboration of efforts and resources by EEOC and DOJ regarding Public Sector Investigations
Other Partnerships
bullInternal and External Integration of Resources has also fostered EEOC collaboration on public and Private Sector maners with
middotDOL (OFCCP amp WampH)
bullFair Employment Practice Agencies
bullAnd others who arc a part of the multi-pronged national equal employment law enforcement effort
14
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
SYSTEMIC
INVESTIGATIONS
EEOC STRATEGIC FOCUS
Basis for Systemic Enforcement
Systemic cases can be brought under any of the statutes enforced by the EEOC Including ADAAA GINA and PDA
Strategic Plan to have Sustainable Impact Most effective way to reduce and deter discriminatory practices In the workplace
Systemic cases usually Involve
company-wide practices or policies
The EEOC may request and analyze
extensive electronic data and numerous
documents conduct statistical analyses and
interview witnesses and class members
1 5
D isparate
(directed targeted)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Two Types of Systemic Discrimination Cases
bull t Systemic Disparate Treaunent Cases
bull 2 Systemic Disparate Impact Cases
Treatment Cases
bull where the discrimination was Intentional or
bull Disparate treatment cases are the most common type of cases
Three Main Types of Systemic Disparate Treatment Cases
(1) discriminatory treatment In employment
decisions such as hiring promotion and
discharge
eg An employer refuses to hire or promote
people based on their disability
May 9 20 1 4
16
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Three Main Types of Systemic Disparate Treatment Cases
(2) discriminatory rules practices and
policies eg cases where an employer has a policy practice
or rule that on its face treats people In a protected
group differendy than others such as a rule that an
employee who is returning to work from a
Reasonabfe Accommodation leave of absence must
re-test to qualify to do a job
Three Main Types of Systemic Disparate Treatment Cases
(3) harassment
eg harassment based upon corporate or workplace culture or practice or which are codified in policies or practice
Examples of Disparate Treatment In Employment Decisions
bull a hotel managers statement that he does not hire disabled applicants because they miss too much rime off work
bull a companys statement to a temporary placement agency that it wants fit people for its office positions jobs
17
engtge complained
company VII
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Examples of Disparate Treatment in Employment Decisions
bull notations on employment application$ indicating the suspected inability based upon a perceived disability of the applicant
bull a retail store regional managers statement that hiring people with disabilities as greeters would depress customers
bull A hiring managers instructions to not hire anyone with limited mobility for sales positions
Examples of Disparate Treatment In Discriminatory Rule or Policy
bull An employer has a policy prohibiting pregnant women from working in jobs that the employer believes might pose a risk to the pregnancy This policy is iUcral unless the employer can demonstrate that being male or a non-pregnant female is a bona fide occupational qualification (BFOQ) In other words the employer would have to show that sex or pregnancy actually interferes with the employees abiltty to do the job The BFOQ defense is a very narrow exception to Title VII which employers can rarely establish
Examples of Disparate Treatment In Systemic Harassment- Sex
bull On a daily basis the male managers of a company made degrading comments to the fem ale employees abOut their bodies asked them questions abOut their ex lives and requested that they in sexual activiues Some female employees about the xual conduct to the human resources department but the conduct continued The managers claim that they were just joking The evidence indJcates that women as a class were subjected to a hostile working environment and that the is liab e for sexual harassment in iolation ofTitle
bull
May 9 20 1 4
1 8
Disparate Impact Cases
procedure policy practice disproportionate
impact
i
employenmplemented physical excludes pplicants
employment have
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull -where an employer has a neutral selection or
that has a adverse on people in a protected group such as a written test that disproportionately excludes all or a particular type of disabled employeesbull
bull
Both Theories May Apply
bull Some c1ses ra se both dispartte trearment and disparate imp1ct issues
bull For exmple if an invesnguion reveals that m a agliry test th1t
disabled job and the test may have been adopted for discriminatory reasons the case could be analyzed under both the wsparote treatment and disparte impact theories
bull Under either theory plaintiffs in discrimination cases mcludin EEOC the burden of proving that discrunination occurred
REMEDIES
bull Disparate Treatment Cases
bull Backpay
bull Reinstatement Instatement or Front Pay
bull Compensatory Damages
bull Punitive Damages
bull Non-Monetary (Afflmlltive Relief)
bull Attorneys Fees and Cost
May 9t 20 1 4
19
Services
University Texas Medical Centerv
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REMEDIES
Disparate Impact Cases
bull Backpay
bull Reinstatement ln tatement or Front Pay
bull Non-Ivlonetaty (Aff=tive Relict)
bull Attorneys Fees and Cost
Word of Caution
Special Issues of proof in ADA and Title VII
Retaliation Claims
Challenges to Standard of Proof
bull Shift in lliCed llotive cases to but for standard of proof
bull Gross v FBL Financial 557 US 167 (2009)-But For in ADEA and Title VII Retaliation
bull of SW 133 S Ct 2517 (2013)-Reaffuming
Groubut for standard in Title VII Rettliation cases
May 9 20 1 4
20
Palmqmst v Shinselo
Srwatka v Rockwel Auromatjon Inc
lewts v Humbolt Accwisition Corv
Pinkerton y Spelm s
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOS IUM
bull Other Coutts extendmg this to ADA cases -bull 8 F3 66 I Ctr 2012) bull
But For in ADA cases implied by chain analysis as follows
- ltehabiLtation Act borrows causation standard from ADA
middot ADA because standard bears a strilung rr mblancc to the ADEA because orbull standard
bull ADEA has been determined by Grou to be a but for standard
bull 591 Fld 57 (7ch Cir 2010)-7 Cir held But For causation standard is rrquircd in ADA cSCs
bull 681 Fld 312 (6ch Cir 202)-6Cir Also applies But For in ADA cases
bull Fifth Circuit - 521 Fld 513 (Sbullbull Cir 2008)-Mixed mauve in 501 cases which incorporues ADA standards But nm to ction 504 ca s whtch requires disabiJty as the sole rrason for adve action
bullADA
bullGINA
bullPDA
bullFMLA
bullWC
Todays Focus
May 9 20 1 4
21
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull ADA bull Equal Employment Opportunity Commission (EEOC)
bull FMLA- Department of Labor (Wage amp Hour Di1ston
bull Wo rken Compensation- Stlte Workers Compensation Commissions
Purpose of the ADA FMLA and Workers Compensation Laws
bull The ADA as mended pmhbits discrimmation llinsc applicants and employees who are dosabled regtrded as disabled or haC a record of doubdny
bull The FM lA sets minimum lcac standards for employees for the binh and n bom can of a chtld placement of bull child for adoption or rosier carr to carr rar m lmmediale funily member th a J(tious health condition and for the employees serious health condo ton
bull Worlun1 Compcnsacion laAS pmide for payment of compensation md rthabilitation for wotkplace in1uries and monom1ze employer habihty
ADA and GINA
May 9 20 1 4
22
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
TWIN STATUTES
ADA Here and Now
ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability- Conditions that exist now
GINA LOOKING DOWN THE ROAD
bull based on genetic information and not on the basis of a manifested condition - Potential Conditions
23
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
RECAP ADA Overview
The Americans with
Disabilities Act
Amendments Act of 2008
(ADAAA) EEOCs Final Regulations
ADA Definition of Disability
Basic 3-part definition remains the same
bull A physical or mental impairment that substantially limits a major life activity
bull Arecord of such an impairment
bull Being regarded as having such an impairment
However Congress changed the meanings of lcey terms used In these definitions
24
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Major Life Activities
bull Statute and EEOC regulations provide two non-exhaustive lists of major life activities
bull First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts
List of major life activities is not exhaustive
bull liftingbullcaring for oneself bullbendingbull performing bull speakingbull manual tasks bullbreathingbullseeing bulllearningbull hearing bull readingbull eating bullconcentratlngbull sleeping bullthinkingbullwalking bull communicatingbullstanding bullInteracting with bullsitting bull othersbullreaching bulland working
Major Life Activities Include Major Bodily Functions
bull New category of major life activities
bull Will make it easier for individuals with many different types of impairments to establish disability
25
would
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Major Bodily Functions
bull Functions of the immune system special sense organs and skin normal cell growth digestive genitourinary bowel bladder neurological brain respiratory circulatory cardiovascular endocrine hemic lymphatic musculoskeletal reproductive
bull Operations of an individual organ within a body system such as the operation of kidney liver or pancreas
Impairments That Are Episodic or In Remission
bull Remission Vill be prong one of disabilities ifi substantially limits a major life activity
WHEN ACTIVE bull Cancer is an example of impairment that may be in
remission
bull The Employer may balance the field during the reasonable accommodation analysis
Impairments That Are Episodic or In Remission
bull Episodic Impairments that ma) not affect a person 247 but which periodically flare up
bull eg epilepsy hypertension asthma diabetes major depressive disorder bipolar disorder schizophrenia
May 9 201 4
26
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
Ucbull Color
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Federal Sector EEO Complaint Process
bull Regulations provide for the acceptance of complaints from
bull Current employees bull Fonner emplo)middotees bull Applicants for employment
Basis for Filing a Complaint of
Discrimination
Rdogion tgc(HO) National Origin Disability (MtmliPhysical) Sex (gender sexual hamsmcnl scxual ontnution) Reprisal
bullbullaaot---_tbullMd Dillwbullttorbullca bullbullpfDCftMd dn-IM EEOCbull runlurn (ot COpl-tof ow-_ Bd- Snel OWcoo(EOC Otdn No 001)dRtWMin29CFitrbullr1IU
Threshold Inquiry
When did the aUeged incident or action occur
bull Did it occur within the last 45 calendar days
What hann have you suffered
bull Must be specific
8
u
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Stages of an Federal Agency EEO Complaint
INFORMAL COMPLAINT STAGE Contact Agency EEO Office or Agent
liiJ Counoeling Sagc bull 30 d
bull Counsdmg bull Pact Flftdanc bull lnformalllnoW bull lOdopbull 1DRIMWOOft bull I( ADR ilbullciKt-d tlw prnod 11 lltrndcd to up to
lOUJ1 bull Nooce of Right to fbulllbull complgtnt th thbull
agmlty bull Compwn h IS dbullp to file fomul
compbmt
FEDERAL AGENCY EEO COMPLAINT PROCESS
Formal Stage
Acccp12bility Stogc
bull File fonnl complbnt th OE O
bull Accept DismiSS
bull Asstgn for In csttgtbullon
May 9 201 4
9
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
EEO COMPLAINT PROCESS
bull lnvcsligativc S11gc
bull Potential Methods aOn-Sut bRcqu to for
Producbon
cAffidgtgtto
d Vampdto confere-nce
bull Timcfnme -180 dafl (r ltbulltendo or amondnl)
EEO COMPLAINT PROCESS El crion Stage
bull Advisement of RghtJ Issued
bull CompiUnmt mgtkcs election - 30 doys
bull eEOC Heanng or bull FlmlltgenCJ Dtruion
Both drcisions cn br appralrd
Most Common Reasons For Dismissal
bull Time Frames
bull Initial EEO Contact bull 45 Calendar Ooys
bull Filing Fonnal Comphunts bull IS Calcndbullr Days after
rcccopt of Notocc of Right to File
10
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
continued bull Failure to State a Claim
bull Un3ble to show you 3re hanned by the m3tter complained of
bull fail to allege a protecrie bam of discnmin3non
Identical claim
bull Has already been brought before the Discrimin3non Complaint Process
bull Has bcen rtiscd in 3 negoti3tcd grievance procedure for most agencies
bull MSPB 3ppeal
PRIVATE
SECTOR
PROCESS
INTAKE
bull InquiryIntake Questionnaire (bring or mail
bull Letter or complaint (mail or in person) -No Attorney needed- Must be signed
bull EEOC may request more information
bull Statute of Limitation- 180 days unless State or Local Law extends to 300 days
bull Age Discrimination eCtended only if STATE law eCtends it
May 9 20 1 4
11
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Service to Employer
bull Vtthin 10 days notice and copy of charge sent to employer
bull Employer invited to send Statement of Position and sometime respond to EEOC Request for Information
bull EEOC has subpoena power
bull Some cases may be invited to mediation- Both must agree
Mediation
bull Mediation scheduled
bull Parties meet with mediator bull FirewaU exists
bull Tries to reach voluntary settlement
bull No determination of right or wrong- no cause determination made
bull lIediated settlement is an agreement reach by the parties but to which the EEOC is also a signer
bull Compliance may be enforced by the EEOC
Investigation
bull If not resolved by mediation assigned to investigator
bull Investigation may include
a On-Sire visits andor Interviews
b Requests for Information
c Fact finding conference
d Evidence Analysis
1 2
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Determination bull Based upon the evidence violation found or not
found
bull If no violation or at any srage if no juriroiction or if EEOC probably cannot reach determination case closed and Notice of Right to Sue i sued- NRTS may be requested after 90 days
bull If violation found conciliation is attempted
bull If no settlement Notice of Right to Sue Issued or EEOC decides to litigate
bull Reconsideration may be requ ted
FAIR EMPLOYMENT PRACTICE AGENCIES
bullWorkshare Agreement
bullSubstantial Weight Review
PUBLIC SECTOR
PROCESS
13
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
EEOC Public Sector Process
middotSame EEOC Intake Investigation and Cause Determination process
middotEEOC forwards its determination to the Department of Justice (DOJ) which issues the Notice of Right to Sue
bullLitigation of Public Sector Charges determined and conducted by DOJ
EEOC Public Sector Process
middotEEOCs Strategic Plan requires Internal and External Integration of Resources
bullCollaboration of efforts and resources by EEOC and DOJ regarding Public Sector Investigations
Other Partnerships
bullInternal and External Integration of Resources has also fostered EEOC collaboration on public and Private Sector maners with
middotDOL (OFCCP amp WampH)
bullFair Employment Practice Agencies
bullAnd others who arc a part of the multi-pronged national equal employment law enforcement effort
14
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
SYSTEMIC
INVESTIGATIONS
EEOC STRATEGIC FOCUS
Basis for Systemic Enforcement
Systemic cases can be brought under any of the statutes enforced by the EEOC Including ADAAA GINA and PDA
Strategic Plan to have Sustainable Impact Most effective way to reduce and deter discriminatory practices In the workplace
Systemic cases usually Involve
company-wide practices or policies
The EEOC may request and analyze
extensive electronic data and numerous
documents conduct statistical analyses and
interview witnesses and class members
1 5
D isparate
(directed targeted)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Two Types of Systemic Discrimination Cases
bull t Systemic Disparate Treaunent Cases
bull 2 Systemic Disparate Impact Cases
Treatment Cases
bull where the discrimination was Intentional or
bull Disparate treatment cases are the most common type of cases
Three Main Types of Systemic Disparate Treatment Cases
(1) discriminatory treatment In employment
decisions such as hiring promotion and
discharge
eg An employer refuses to hire or promote
people based on their disability
May 9 20 1 4
16
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Three Main Types of Systemic Disparate Treatment Cases
(2) discriminatory rules practices and
policies eg cases where an employer has a policy practice
or rule that on its face treats people In a protected
group differendy than others such as a rule that an
employee who is returning to work from a
Reasonabfe Accommodation leave of absence must
re-test to qualify to do a job
Three Main Types of Systemic Disparate Treatment Cases
(3) harassment
eg harassment based upon corporate or workplace culture or practice or which are codified in policies or practice
Examples of Disparate Treatment In Employment Decisions
bull a hotel managers statement that he does not hire disabled applicants because they miss too much rime off work
bull a companys statement to a temporary placement agency that it wants fit people for its office positions jobs
17
engtge complained
company VII
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Examples of Disparate Treatment in Employment Decisions
bull notations on employment application$ indicating the suspected inability based upon a perceived disability of the applicant
bull a retail store regional managers statement that hiring people with disabilities as greeters would depress customers
bull A hiring managers instructions to not hire anyone with limited mobility for sales positions
Examples of Disparate Treatment In Discriminatory Rule or Policy
bull An employer has a policy prohibiting pregnant women from working in jobs that the employer believes might pose a risk to the pregnancy This policy is iUcral unless the employer can demonstrate that being male or a non-pregnant female is a bona fide occupational qualification (BFOQ) In other words the employer would have to show that sex or pregnancy actually interferes with the employees abiltty to do the job The BFOQ defense is a very narrow exception to Title VII which employers can rarely establish
Examples of Disparate Treatment In Systemic Harassment- Sex
bull On a daily basis the male managers of a company made degrading comments to the fem ale employees abOut their bodies asked them questions abOut their ex lives and requested that they in sexual activiues Some female employees about the xual conduct to the human resources department but the conduct continued The managers claim that they were just joking The evidence indJcates that women as a class were subjected to a hostile working environment and that the is liab e for sexual harassment in iolation ofTitle
bull
May 9 20 1 4
1 8
Disparate Impact Cases
procedure policy practice disproportionate
impact
i
employenmplemented physical excludes pplicants
employment have
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull -where an employer has a neutral selection or
that has a adverse on people in a protected group such as a written test that disproportionately excludes all or a particular type of disabled employeesbull
bull
Both Theories May Apply
bull Some c1ses ra se both dispartte trearment and disparate imp1ct issues
bull For exmple if an invesnguion reveals that m a agliry test th1t
disabled job and the test may have been adopted for discriminatory reasons the case could be analyzed under both the wsparote treatment and disparte impact theories
bull Under either theory plaintiffs in discrimination cases mcludin EEOC the burden of proving that discrunination occurred
REMEDIES
bull Disparate Treatment Cases
bull Backpay
bull Reinstatement Instatement or Front Pay
bull Compensatory Damages
bull Punitive Damages
bull Non-Monetary (Afflmlltive Relief)
bull Attorneys Fees and Cost
May 9t 20 1 4
19
Services
University Texas Medical Centerv
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REMEDIES
Disparate Impact Cases
bull Backpay
bull Reinstatement ln tatement or Front Pay
bull Non-Ivlonetaty (Aff=tive Relict)
bull Attorneys Fees and Cost
Word of Caution
Special Issues of proof in ADA and Title VII
Retaliation Claims
Challenges to Standard of Proof
bull Shift in lliCed llotive cases to but for standard of proof
bull Gross v FBL Financial 557 US 167 (2009)-But For in ADEA and Title VII Retaliation
bull of SW 133 S Ct 2517 (2013)-Reaffuming
Groubut for standard in Title VII Rettliation cases
May 9 20 1 4
20
Palmqmst v Shinselo
Srwatka v Rockwel Auromatjon Inc
lewts v Humbolt Accwisition Corv
Pinkerton y Spelm s
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOS IUM
bull Other Coutts extendmg this to ADA cases -bull 8 F3 66 I Ctr 2012) bull
But For in ADA cases implied by chain analysis as follows
- ltehabiLtation Act borrows causation standard from ADA
middot ADA because standard bears a strilung rr mblancc to the ADEA because orbull standard
bull ADEA has been determined by Grou to be a but for standard
bull 591 Fld 57 (7ch Cir 2010)-7 Cir held But For causation standard is rrquircd in ADA cSCs
bull 681 Fld 312 (6ch Cir 202)-6Cir Also applies But For in ADA cases
bull Fifth Circuit - 521 Fld 513 (Sbullbull Cir 2008)-Mixed mauve in 501 cases which incorporues ADA standards But nm to ction 504 ca s whtch requires disabiJty as the sole rrason for adve action
bullADA
bullGINA
bullPDA
bullFMLA
bullWC
Todays Focus
May 9 20 1 4
21
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull ADA bull Equal Employment Opportunity Commission (EEOC)
bull FMLA- Department of Labor (Wage amp Hour Di1ston
bull Wo rken Compensation- Stlte Workers Compensation Commissions
Purpose of the ADA FMLA and Workers Compensation Laws
bull The ADA as mended pmhbits discrimmation llinsc applicants and employees who are dosabled regtrded as disabled or haC a record of doubdny
bull The FM lA sets minimum lcac standards for employees for the binh and n bom can of a chtld placement of bull child for adoption or rosier carr to carr rar m lmmediale funily member th a J(tious health condition and for the employees serious health condo ton
bull Worlun1 Compcnsacion laAS pmide for payment of compensation md rthabilitation for wotkplace in1uries and monom1ze employer habihty
ADA and GINA
May 9 20 1 4
22
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
TWIN STATUTES
ADA Here and Now
ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability- Conditions that exist now
GINA LOOKING DOWN THE ROAD
bull based on genetic information and not on the basis of a manifested condition - Potential Conditions
23
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
RECAP ADA Overview
The Americans with
Disabilities Act
Amendments Act of 2008
(ADAAA) EEOCs Final Regulations
ADA Definition of Disability
Basic 3-part definition remains the same
bull A physical or mental impairment that substantially limits a major life activity
bull Arecord of such an impairment
bull Being regarded as having such an impairment
However Congress changed the meanings of lcey terms used In these definitions
24
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Major Life Activities
bull Statute and EEOC regulations provide two non-exhaustive lists of major life activities
bull First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts
List of major life activities is not exhaustive
bull liftingbullcaring for oneself bullbendingbull performing bull speakingbull manual tasks bullbreathingbullseeing bulllearningbull hearing bull readingbull eating bullconcentratlngbull sleeping bullthinkingbullwalking bull communicatingbullstanding bullInteracting with bullsitting bull othersbullreaching bulland working
Major Life Activities Include Major Bodily Functions
bull New category of major life activities
bull Will make it easier for individuals with many different types of impairments to establish disability
25
would
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Major Bodily Functions
bull Functions of the immune system special sense organs and skin normal cell growth digestive genitourinary bowel bladder neurological brain respiratory circulatory cardiovascular endocrine hemic lymphatic musculoskeletal reproductive
bull Operations of an individual organ within a body system such as the operation of kidney liver or pancreas
Impairments That Are Episodic or In Remission
bull Remission Vill be prong one of disabilities ifi substantially limits a major life activity
WHEN ACTIVE bull Cancer is an example of impairment that may be in
remission
bull The Employer may balance the field during the reasonable accommodation analysis
Impairments That Are Episodic or In Remission
bull Episodic Impairments that ma) not affect a person 247 but which periodically flare up
bull eg epilepsy hypertension asthma diabetes major depressive disorder bipolar disorder schizophrenia
May 9 201 4
26
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
u
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Stages of an Federal Agency EEO Complaint
INFORMAL COMPLAINT STAGE Contact Agency EEO Office or Agent
liiJ Counoeling Sagc bull 30 d
bull Counsdmg bull Pact Flftdanc bull lnformalllnoW bull lOdopbull 1DRIMWOOft bull I( ADR ilbullciKt-d tlw prnod 11 lltrndcd to up to
lOUJ1 bull Nooce of Right to fbulllbull complgtnt th thbull
agmlty bull Compwn h IS dbullp to file fomul
compbmt
FEDERAL AGENCY EEO COMPLAINT PROCESS
Formal Stage
Acccp12bility Stogc
bull File fonnl complbnt th OE O
bull Accept DismiSS
bull Asstgn for In csttgtbullon
May 9 201 4
9
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
EEO COMPLAINT PROCESS
bull lnvcsligativc S11gc
bull Potential Methods aOn-Sut bRcqu to for
Producbon
cAffidgtgtto
d Vampdto confere-nce
bull Timcfnme -180 dafl (r ltbulltendo or amondnl)
EEO COMPLAINT PROCESS El crion Stage
bull Advisement of RghtJ Issued
bull CompiUnmt mgtkcs election - 30 doys
bull eEOC Heanng or bull FlmlltgenCJ Dtruion
Both drcisions cn br appralrd
Most Common Reasons For Dismissal
bull Time Frames
bull Initial EEO Contact bull 45 Calendar Ooys
bull Filing Fonnal Comphunts bull IS Calcndbullr Days after
rcccopt of Notocc of Right to File
10
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
continued bull Failure to State a Claim
bull Un3ble to show you 3re hanned by the m3tter complained of
bull fail to allege a protecrie bam of discnmin3non
Identical claim
bull Has already been brought before the Discrimin3non Complaint Process
bull Has bcen rtiscd in 3 negoti3tcd grievance procedure for most agencies
bull MSPB 3ppeal
PRIVATE
SECTOR
PROCESS
INTAKE
bull InquiryIntake Questionnaire (bring or mail
bull Letter or complaint (mail or in person) -No Attorney needed- Must be signed
bull EEOC may request more information
bull Statute of Limitation- 180 days unless State or Local Law extends to 300 days
bull Age Discrimination eCtended only if STATE law eCtends it
May 9 20 1 4
11
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Service to Employer
bull Vtthin 10 days notice and copy of charge sent to employer
bull Employer invited to send Statement of Position and sometime respond to EEOC Request for Information
bull EEOC has subpoena power
bull Some cases may be invited to mediation- Both must agree
Mediation
bull Mediation scheduled
bull Parties meet with mediator bull FirewaU exists
bull Tries to reach voluntary settlement
bull No determination of right or wrong- no cause determination made
bull lIediated settlement is an agreement reach by the parties but to which the EEOC is also a signer
bull Compliance may be enforced by the EEOC
Investigation
bull If not resolved by mediation assigned to investigator
bull Investigation may include
a On-Sire visits andor Interviews
b Requests for Information
c Fact finding conference
d Evidence Analysis
1 2
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Determination bull Based upon the evidence violation found or not
found
bull If no violation or at any srage if no juriroiction or if EEOC probably cannot reach determination case closed and Notice of Right to Sue i sued- NRTS may be requested after 90 days
bull If violation found conciliation is attempted
bull If no settlement Notice of Right to Sue Issued or EEOC decides to litigate
bull Reconsideration may be requ ted
FAIR EMPLOYMENT PRACTICE AGENCIES
bullWorkshare Agreement
bullSubstantial Weight Review
PUBLIC SECTOR
PROCESS
13
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
EEOC Public Sector Process
middotSame EEOC Intake Investigation and Cause Determination process
middotEEOC forwards its determination to the Department of Justice (DOJ) which issues the Notice of Right to Sue
bullLitigation of Public Sector Charges determined and conducted by DOJ
EEOC Public Sector Process
middotEEOCs Strategic Plan requires Internal and External Integration of Resources
bullCollaboration of efforts and resources by EEOC and DOJ regarding Public Sector Investigations
Other Partnerships
bullInternal and External Integration of Resources has also fostered EEOC collaboration on public and Private Sector maners with
middotDOL (OFCCP amp WampH)
bullFair Employment Practice Agencies
bullAnd others who arc a part of the multi-pronged national equal employment law enforcement effort
14
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
SYSTEMIC
INVESTIGATIONS
EEOC STRATEGIC FOCUS
Basis for Systemic Enforcement
Systemic cases can be brought under any of the statutes enforced by the EEOC Including ADAAA GINA and PDA
Strategic Plan to have Sustainable Impact Most effective way to reduce and deter discriminatory practices In the workplace
Systemic cases usually Involve
company-wide practices or policies
The EEOC may request and analyze
extensive electronic data and numerous
documents conduct statistical analyses and
interview witnesses and class members
1 5
D isparate
(directed targeted)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Two Types of Systemic Discrimination Cases
bull t Systemic Disparate Treaunent Cases
bull 2 Systemic Disparate Impact Cases
Treatment Cases
bull where the discrimination was Intentional or
bull Disparate treatment cases are the most common type of cases
Three Main Types of Systemic Disparate Treatment Cases
(1) discriminatory treatment In employment
decisions such as hiring promotion and
discharge
eg An employer refuses to hire or promote
people based on their disability
May 9 20 1 4
16
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Three Main Types of Systemic Disparate Treatment Cases
(2) discriminatory rules practices and
policies eg cases where an employer has a policy practice
or rule that on its face treats people In a protected
group differendy than others such as a rule that an
employee who is returning to work from a
Reasonabfe Accommodation leave of absence must
re-test to qualify to do a job
Three Main Types of Systemic Disparate Treatment Cases
(3) harassment
eg harassment based upon corporate or workplace culture or practice or which are codified in policies or practice
Examples of Disparate Treatment In Employment Decisions
bull a hotel managers statement that he does not hire disabled applicants because they miss too much rime off work
bull a companys statement to a temporary placement agency that it wants fit people for its office positions jobs
17
engtge complained
company VII
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Examples of Disparate Treatment in Employment Decisions
bull notations on employment application$ indicating the suspected inability based upon a perceived disability of the applicant
bull a retail store regional managers statement that hiring people with disabilities as greeters would depress customers
bull A hiring managers instructions to not hire anyone with limited mobility for sales positions
Examples of Disparate Treatment In Discriminatory Rule or Policy
bull An employer has a policy prohibiting pregnant women from working in jobs that the employer believes might pose a risk to the pregnancy This policy is iUcral unless the employer can demonstrate that being male or a non-pregnant female is a bona fide occupational qualification (BFOQ) In other words the employer would have to show that sex or pregnancy actually interferes with the employees abiltty to do the job The BFOQ defense is a very narrow exception to Title VII which employers can rarely establish
Examples of Disparate Treatment In Systemic Harassment- Sex
bull On a daily basis the male managers of a company made degrading comments to the fem ale employees abOut their bodies asked them questions abOut their ex lives and requested that they in sexual activiues Some female employees about the xual conduct to the human resources department but the conduct continued The managers claim that they were just joking The evidence indJcates that women as a class were subjected to a hostile working environment and that the is liab e for sexual harassment in iolation ofTitle
bull
May 9 20 1 4
1 8
Disparate Impact Cases
procedure policy practice disproportionate
impact
i
employenmplemented physical excludes pplicants
employment have
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull -where an employer has a neutral selection or
that has a adverse on people in a protected group such as a written test that disproportionately excludes all or a particular type of disabled employeesbull
bull
Both Theories May Apply
bull Some c1ses ra se both dispartte trearment and disparate imp1ct issues
bull For exmple if an invesnguion reveals that m a agliry test th1t
disabled job and the test may have been adopted for discriminatory reasons the case could be analyzed under both the wsparote treatment and disparte impact theories
bull Under either theory plaintiffs in discrimination cases mcludin EEOC the burden of proving that discrunination occurred
REMEDIES
bull Disparate Treatment Cases
bull Backpay
bull Reinstatement Instatement or Front Pay
bull Compensatory Damages
bull Punitive Damages
bull Non-Monetary (Afflmlltive Relief)
bull Attorneys Fees and Cost
May 9t 20 1 4
19
Services
University Texas Medical Centerv
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REMEDIES
Disparate Impact Cases
bull Backpay
bull Reinstatement ln tatement or Front Pay
bull Non-Ivlonetaty (Aff=tive Relict)
bull Attorneys Fees and Cost
Word of Caution
Special Issues of proof in ADA and Title VII
Retaliation Claims
Challenges to Standard of Proof
bull Shift in lliCed llotive cases to but for standard of proof
bull Gross v FBL Financial 557 US 167 (2009)-But For in ADEA and Title VII Retaliation
bull of SW 133 S Ct 2517 (2013)-Reaffuming
Groubut for standard in Title VII Rettliation cases
May 9 20 1 4
20
Palmqmst v Shinselo
Srwatka v Rockwel Auromatjon Inc
lewts v Humbolt Accwisition Corv
Pinkerton y Spelm s
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOS IUM
bull Other Coutts extendmg this to ADA cases -bull 8 F3 66 I Ctr 2012) bull
But For in ADA cases implied by chain analysis as follows
- ltehabiLtation Act borrows causation standard from ADA
middot ADA because standard bears a strilung rr mblancc to the ADEA because orbull standard
bull ADEA has been determined by Grou to be a but for standard
bull 591 Fld 57 (7ch Cir 2010)-7 Cir held But For causation standard is rrquircd in ADA cSCs
bull 681 Fld 312 (6ch Cir 202)-6Cir Also applies But For in ADA cases
bull Fifth Circuit - 521 Fld 513 (Sbullbull Cir 2008)-Mixed mauve in 501 cases which incorporues ADA standards But nm to ction 504 ca s whtch requires disabiJty as the sole rrason for adve action
bullADA
bullGINA
bullPDA
bullFMLA
bullWC
Todays Focus
May 9 20 1 4
21
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull ADA bull Equal Employment Opportunity Commission (EEOC)
bull FMLA- Department of Labor (Wage amp Hour Di1ston
bull Wo rken Compensation- Stlte Workers Compensation Commissions
Purpose of the ADA FMLA and Workers Compensation Laws
bull The ADA as mended pmhbits discrimmation llinsc applicants and employees who are dosabled regtrded as disabled or haC a record of doubdny
bull The FM lA sets minimum lcac standards for employees for the binh and n bom can of a chtld placement of bull child for adoption or rosier carr to carr rar m lmmediale funily member th a J(tious health condition and for the employees serious health condo ton
bull Worlun1 Compcnsacion laAS pmide for payment of compensation md rthabilitation for wotkplace in1uries and monom1ze employer habihty
ADA and GINA
May 9 20 1 4
22
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
TWIN STATUTES
ADA Here and Now
ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability- Conditions that exist now
GINA LOOKING DOWN THE ROAD
bull based on genetic information and not on the basis of a manifested condition - Potential Conditions
23
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
RECAP ADA Overview
The Americans with
Disabilities Act
Amendments Act of 2008
(ADAAA) EEOCs Final Regulations
ADA Definition of Disability
Basic 3-part definition remains the same
bull A physical or mental impairment that substantially limits a major life activity
bull Arecord of such an impairment
bull Being regarded as having such an impairment
However Congress changed the meanings of lcey terms used In these definitions
24
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Major Life Activities
bull Statute and EEOC regulations provide two non-exhaustive lists of major life activities
bull First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts
List of major life activities is not exhaustive
bull liftingbullcaring for oneself bullbendingbull performing bull speakingbull manual tasks bullbreathingbullseeing bulllearningbull hearing bull readingbull eating bullconcentratlngbull sleeping bullthinkingbullwalking bull communicatingbullstanding bullInteracting with bullsitting bull othersbullreaching bulland working
Major Life Activities Include Major Bodily Functions
bull New category of major life activities
bull Will make it easier for individuals with many different types of impairments to establish disability
25
would
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Major Bodily Functions
bull Functions of the immune system special sense organs and skin normal cell growth digestive genitourinary bowel bladder neurological brain respiratory circulatory cardiovascular endocrine hemic lymphatic musculoskeletal reproductive
bull Operations of an individual organ within a body system such as the operation of kidney liver or pancreas
Impairments That Are Episodic or In Remission
bull Remission Vill be prong one of disabilities ifi substantially limits a major life activity
WHEN ACTIVE bull Cancer is an example of impairment that may be in
remission
bull The Employer may balance the field during the reasonable accommodation analysis
Impairments That Are Episodic or In Remission
bull Episodic Impairments that ma) not affect a person 247 but which periodically flare up
bull eg epilepsy hypertension asthma diabetes major depressive disorder bipolar disorder schizophrenia
May 9 201 4
26
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
EEO COMPLAINT PROCESS
bull lnvcsligativc S11gc
bull Potential Methods aOn-Sut bRcqu to for
Producbon
cAffidgtgtto
d Vampdto confere-nce
bull Timcfnme -180 dafl (r ltbulltendo or amondnl)
EEO COMPLAINT PROCESS El crion Stage
bull Advisement of RghtJ Issued
bull CompiUnmt mgtkcs election - 30 doys
bull eEOC Heanng or bull FlmlltgenCJ Dtruion
Both drcisions cn br appralrd
Most Common Reasons For Dismissal
bull Time Frames
bull Initial EEO Contact bull 45 Calendar Ooys
bull Filing Fonnal Comphunts bull IS Calcndbullr Days after
rcccopt of Notocc of Right to File
10
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
continued bull Failure to State a Claim
bull Un3ble to show you 3re hanned by the m3tter complained of
bull fail to allege a protecrie bam of discnmin3non
Identical claim
bull Has already been brought before the Discrimin3non Complaint Process
bull Has bcen rtiscd in 3 negoti3tcd grievance procedure for most agencies
bull MSPB 3ppeal
PRIVATE
SECTOR
PROCESS
INTAKE
bull InquiryIntake Questionnaire (bring or mail
bull Letter or complaint (mail or in person) -No Attorney needed- Must be signed
bull EEOC may request more information
bull Statute of Limitation- 180 days unless State or Local Law extends to 300 days
bull Age Discrimination eCtended only if STATE law eCtends it
May 9 20 1 4
11
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Service to Employer
bull Vtthin 10 days notice and copy of charge sent to employer
bull Employer invited to send Statement of Position and sometime respond to EEOC Request for Information
bull EEOC has subpoena power
bull Some cases may be invited to mediation- Both must agree
Mediation
bull Mediation scheduled
bull Parties meet with mediator bull FirewaU exists
bull Tries to reach voluntary settlement
bull No determination of right or wrong- no cause determination made
bull lIediated settlement is an agreement reach by the parties but to which the EEOC is also a signer
bull Compliance may be enforced by the EEOC
Investigation
bull If not resolved by mediation assigned to investigator
bull Investigation may include
a On-Sire visits andor Interviews
b Requests for Information
c Fact finding conference
d Evidence Analysis
1 2
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Determination bull Based upon the evidence violation found or not
found
bull If no violation or at any srage if no juriroiction or if EEOC probably cannot reach determination case closed and Notice of Right to Sue i sued- NRTS may be requested after 90 days
bull If violation found conciliation is attempted
bull If no settlement Notice of Right to Sue Issued or EEOC decides to litigate
bull Reconsideration may be requ ted
FAIR EMPLOYMENT PRACTICE AGENCIES
bullWorkshare Agreement
bullSubstantial Weight Review
PUBLIC SECTOR
PROCESS
13
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
EEOC Public Sector Process
middotSame EEOC Intake Investigation and Cause Determination process
middotEEOC forwards its determination to the Department of Justice (DOJ) which issues the Notice of Right to Sue
bullLitigation of Public Sector Charges determined and conducted by DOJ
EEOC Public Sector Process
middotEEOCs Strategic Plan requires Internal and External Integration of Resources
bullCollaboration of efforts and resources by EEOC and DOJ regarding Public Sector Investigations
Other Partnerships
bullInternal and External Integration of Resources has also fostered EEOC collaboration on public and Private Sector maners with
middotDOL (OFCCP amp WampH)
bullFair Employment Practice Agencies
bullAnd others who arc a part of the multi-pronged national equal employment law enforcement effort
14
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
SYSTEMIC
INVESTIGATIONS
EEOC STRATEGIC FOCUS
Basis for Systemic Enforcement
Systemic cases can be brought under any of the statutes enforced by the EEOC Including ADAAA GINA and PDA
Strategic Plan to have Sustainable Impact Most effective way to reduce and deter discriminatory practices In the workplace
Systemic cases usually Involve
company-wide practices or policies
The EEOC may request and analyze
extensive electronic data and numerous
documents conduct statistical analyses and
interview witnesses and class members
1 5
D isparate
(directed targeted)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Two Types of Systemic Discrimination Cases
bull t Systemic Disparate Treaunent Cases
bull 2 Systemic Disparate Impact Cases
Treatment Cases
bull where the discrimination was Intentional or
bull Disparate treatment cases are the most common type of cases
Three Main Types of Systemic Disparate Treatment Cases
(1) discriminatory treatment In employment
decisions such as hiring promotion and
discharge
eg An employer refuses to hire or promote
people based on their disability
May 9 20 1 4
16
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Three Main Types of Systemic Disparate Treatment Cases
(2) discriminatory rules practices and
policies eg cases where an employer has a policy practice
or rule that on its face treats people In a protected
group differendy than others such as a rule that an
employee who is returning to work from a
Reasonabfe Accommodation leave of absence must
re-test to qualify to do a job
Three Main Types of Systemic Disparate Treatment Cases
(3) harassment
eg harassment based upon corporate or workplace culture or practice or which are codified in policies or practice
Examples of Disparate Treatment In Employment Decisions
bull a hotel managers statement that he does not hire disabled applicants because they miss too much rime off work
bull a companys statement to a temporary placement agency that it wants fit people for its office positions jobs
17
engtge complained
company VII
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Examples of Disparate Treatment in Employment Decisions
bull notations on employment application$ indicating the suspected inability based upon a perceived disability of the applicant
bull a retail store regional managers statement that hiring people with disabilities as greeters would depress customers
bull A hiring managers instructions to not hire anyone with limited mobility for sales positions
Examples of Disparate Treatment In Discriminatory Rule or Policy
bull An employer has a policy prohibiting pregnant women from working in jobs that the employer believes might pose a risk to the pregnancy This policy is iUcral unless the employer can demonstrate that being male or a non-pregnant female is a bona fide occupational qualification (BFOQ) In other words the employer would have to show that sex or pregnancy actually interferes with the employees abiltty to do the job The BFOQ defense is a very narrow exception to Title VII which employers can rarely establish
Examples of Disparate Treatment In Systemic Harassment- Sex
bull On a daily basis the male managers of a company made degrading comments to the fem ale employees abOut their bodies asked them questions abOut their ex lives and requested that they in sexual activiues Some female employees about the xual conduct to the human resources department but the conduct continued The managers claim that they were just joking The evidence indJcates that women as a class were subjected to a hostile working environment and that the is liab e for sexual harassment in iolation ofTitle
bull
May 9 20 1 4
1 8
Disparate Impact Cases
procedure policy practice disproportionate
impact
i
employenmplemented physical excludes pplicants
employment have
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull -where an employer has a neutral selection or
that has a adverse on people in a protected group such as a written test that disproportionately excludes all or a particular type of disabled employeesbull
bull
Both Theories May Apply
bull Some c1ses ra se both dispartte trearment and disparate imp1ct issues
bull For exmple if an invesnguion reveals that m a agliry test th1t
disabled job and the test may have been adopted for discriminatory reasons the case could be analyzed under both the wsparote treatment and disparte impact theories
bull Under either theory plaintiffs in discrimination cases mcludin EEOC the burden of proving that discrunination occurred
REMEDIES
bull Disparate Treatment Cases
bull Backpay
bull Reinstatement Instatement or Front Pay
bull Compensatory Damages
bull Punitive Damages
bull Non-Monetary (Afflmlltive Relief)
bull Attorneys Fees and Cost
May 9t 20 1 4
19
Services
University Texas Medical Centerv
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REMEDIES
Disparate Impact Cases
bull Backpay
bull Reinstatement ln tatement or Front Pay
bull Non-Ivlonetaty (Aff=tive Relict)
bull Attorneys Fees and Cost
Word of Caution
Special Issues of proof in ADA and Title VII
Retaliation Claims
Challenges to Standard of Proof
bull Shift in lliCed llotive cases to but for standard of proof
bull Gross v FBL Financial 557 US 167 (2009)-But For in ADEA and Title VII Retaliation
bull of SW 133 S Ct 2517 (2013)-Reaffuming
Groubut for standard in Title VII Rettliation cases
May 9 20 1 4
20
Palmqmst v Shinselo
Srwatka v Rockwel Auromatjon Inc
lewts v Humbolt Accwisition Corv
Pinkerton y Spelm s
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOS IUM
bull Other Coutts extendmg this to ADA cases -bull 8 F3 66 I Ctr 2012) bull
But For in ADA cases implied by chain analysis as follows
- ltehabiLtation Act borrows causation standard from ADA
middot ADA because standard bears a strilung rr mblancc to the ADEA because orbull standard
bull ADEA has been determined by Grou to be a but for standard
bull 591 Fld 57 (7ch Cir 2010)-7 Cir held But For causation standard is rrquircd in ADA cSCs
bull 681 Fld 312 (6ch Cir 202)-6Cir Also applies But For in ADA cases
bull Fifth Circuit - 521 Fld 513 (Sbullbull Cir 2008)-Mixed mauve in 501 cases which incorporues ADA standards But nm to ction 504 ca s whtch requires disabiJty as the sole rrason for adve action
bullADA
bullGINA
bullPDA
bullFMLA
bullWC
Todays Focus
May 9 20 1 4
21
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull ADA bull Equal Employment Opportunity Commission (EEOC)
bull FMLA- Department of Labor (Wage amp Hour Di1ston
bull Wo rken Compensation- Stlte Workers Compensation Commissions
Purpose of the ADA FMLA and Workers Compensation Laws
bull The ADA as mended pmhbits discrimmation llinsc applicants and employees who are dosabled regtrded as disabled or haC a record of doubdny
bull The FM lA sets minimum lcac standards for employees for the binh and n bom can of a chtld placement of bull child for adoption or rosier carr to carr rar m lmmediale funily member th a J(tious health condition and for the employees serious health condo ton
bull Worlun1 Compcnsacion laAS pmide for payment of compensation md rthabilitation for wotkplace in1uries and monom1ze employer habihty
ADA and GINA
May 9 20 1 4
22
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
TWIN STATUTES
ADA Here and Now
ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability- Conditions that exist now
GINA LOOKING DOWN THE ROAD
bull based on genetic information and not on the basis of a manifested condition - Potential Conditions
23
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
RECAP ADA Overview
The Americans with
Disabilities Act
Amendments Act of 2008
(ADAAA) EEOCs Final Regulations
ADA Definition of Disability
Basic 3-part definition remains the same
bull A physical or mental impairment that substantially limits a major life activity
bull Arecord of such an impairment
bull Being regarded as having such an impairment
However Congress changed the meanings of lcey terms used In these definitions
24
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Major Life Activities
bull Statute and EEOC regulations provide two non-exhaustive lists of major life activities
bull First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts
List of major life activities is not exhaustive
bull liftingbullcaring for oneself bullbendingbull performing bull speakingbull manual tasks bullbreathingbullseeing bulllearningbull hearing bull readingbull eating bullconcentratlngbull sleeping bullthinkingbullwalking bull communicatingbullstanding bullInteracting with bullsitting bull othersbullreaching bulland working
Major Life Activities Include Major Bodily Functions
bull New category of major life activities
bull Will make it easier for individuals with many different types of impairments to establish disability
25
would
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Major Bodily Functions
bull Functions of the immune system special sense organs and skin normal cell growth digestive genitourinary bowel bladder neurological brain respiratory circulatory cardiovascular endocrine hemic lymphatic musculoskeletal reproductive
bull Operations of an individual organ within a body system such as the operation of kidney liver or pancreas
Impairments That Are Episodic or In Remission
bull Remission Vill be prong one of disabilities ifi substantially limits a major life activity
WHEN ACTIVE bull Cancer is an example of impairment that may be in
remission
bull The Employer may balance the field during the reasonable accommodation analysis
Impairments That Are Episodic or In Remission
bull Episodic Impairments that ma) not affect a person 247 but which periodically flare up
bull eg epilepsy hypertension asthma diabetes major depressive disorder bipolar disorder schizophrenia
May 9 201 4
26
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
continued bull Failure to State a Claim
bull Un3ble to show you 3re hanned by the m3tter complained of
bull fail to allege a protecrie bam of discnmin3non
Identical claim
bull Has already been brought before the Discrimin3non Complaint Process
bull Has bcen rtiscd in 3 negoti3tcd grievance procedure for most agencies
bull MSPB 3ppeal
PRIVATE
SECTOR
PROCESS
INTAKE
bull InquiryIntake Questionnaire (bring or mail
bull Letter or complaint (mail or in person) -No Attorney needed- Must be signed
bull EEOC may request more information
bull Statute of Limitation- 180 days unless State or Local Law extends to 300 days
bull Age Discrimination eCtended only if STATE law eCtends it
May 9 20 1 4
11
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Service to Employer
bull Vtthin 10 days notice and copy of charge sent to employer
bull Employer invited to send Statement of Position and sometime respond to EEOC Request for Information
bull EEOC has subpoena power
bull Some cases may be invited to mediation- Both must agree
Mediation
bull Mediation scheduled
bull Parties meet with mediator bull FirewaU exists
bull Tries to reach voluntary settlement
bull No determination of right or wrong- no cause determination made
bull lIediated settlement is an agreement reach by the parties but to which the EEOC is also a signer
bull Compliance may be enforced by the EEOC
Investigation
bull If not resolved by mediation assigned to investigator
bull Investigation may include
a On-Sire visits andor Interviews
b Requests for Information
c Fact finding conference
d Evidence Analysis
1 2
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Determination bull Based upon the evidence violation found or not
found
bull If no violation or at any srage if no juriroiction or if EEOC probably cannot reach determination case closed and Notice of Right to Sue i sued- NRTS may be requested after 90 days
bull If violation found conciliation is attempted
bull If no settlement Notice of Right to Sue Issued or EEOC decides to litigate
bull Reconsideration may be requ ted
FAIR EMPLOYMENT PRACTICE AGENCIES
bullWorkshare Agreement
bullSubstantial Weight Review
PUBLIC SECTOR
PROCESS
13
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
EEOC Public Sector Process
middotSame EEOC Intake Investigation and Cause Determination process
middotEEOC forwards its determination to the Department of Justice (DOJ) which issues the Notice of Right to Sue
bullLitigation of Public Sector Charges determined and conducted by DOJ
EEOC Public Sector Process
middotEEOCs Strategic Plan requires Internal and External Integration of Resources
bullCollaboration of efforts and resources by EEOC and DOJ regarding Public Sector Investigations
Other Partnerships
bullInternal and External Integration of Resources has also fostered EEOC collaboration on public and Private Sector maners with
middotDOL (OFCCP amp WampH)
bullFair Employment Practice Agencies
bullAnd others who arc a part of the multi-pronged national equal employment law enforcement effort
14
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
SYSTEMIC
INVESTIGATIONS
EEOC STRATEGIC FOCUS
Basis for Systemic Enforcement
Systemic cases can be brought under any of the statutes enforced by the EEOC Including ADAAA GINA and PDA
Strategic Plan to have Sustainable Impact Most effective way to reduce and deter discriminatory practices In the workplace
Systemic cases usually Involve
company-wide practices or policies
The EEOC may request and analyze
extensive electronic data and numerous
documents conduct statistical analyses and
interview witnesses and class members
1 5
D isparate
(directed targeted)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Two Types of Systemic Discrimination Cases
bull t Systemic Disparate Treaunent Cases
bull 2 Systemic Disparate Impact Cases
Treatment Cases
bull where the discrimination was Intentional or
bull Disparate treatment cases are the most common type of cases
Three Main Types of Systemic Disparate Treatment Cases
(1) discriminatory treatment In employment
decisions such as hiring promotion and
discharge
eg An employer refuses to hire or promote
people based on their disability
May 9 20 1 4
16
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Three Main Types of Systemic Disparate Treatment Cases
(2) discriminatory rules practices and
policies eg cases where an employer has a policy practice
or rule that on its face treats people In a protected
group differendy than others such as a rule that an
employee who is returning to work from a
Reasonabfe Accommodation leave of absence must
re-test to qualify to do a job
Three Main Types of Systemic Disparate Treatment Cases
(3) harassment
eg harassment based upon corporate or workplace culture or practice or which are codified in policies or practice
Examples of Disparate Treatment In Employment Decisions
bull a hotel managers statement that he does not hire disabled applicants because they miss too much rime off work
bull a companys statement to a temporary placement agency that it wants fit people for its office positions jobs
17
engtge complained
company VII
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Examples of Disparate Treatment in Employment Decisions
bull notations on employment application$ indicating the suspected inability based upon a perceived disability of the applicant
bull a retail store regional managers statement that hiring people with disabilities as greeters would depress customers
bull A hiring managers instructions to not hire anyone with limited mobility for sales positions
Examples of Disparate Treatment In Discriminatory Rule or Policy
bull An employer has a policy prohibiting pregnant women from working in jobs that the employer believes might pose a risk to the pregnancy This policy is iUcral unless the employer can demonstrate that being male or a non-pregnant female is a bona fide occupational qualification (BFOQ) In other words the employer would have to show that sex or pregnancy actually interferes with the employees abiltty to do the job The BFOQ defense is a very narrow exception to Title VII which employers can rarely establish
Examples of Disparate Treatment In Systemic Harassment- Sex
bull On a daily basis the male managers of a company made degrading comments to the fem ale employees abOut their bodies asked them questions abOut their ex lives and requested that they in sexual activiues Some female employees about the xual conduct to the human resources department but the conduct continued The managers claim that they were just joking The evidence indJcates that women as a class were subjected to a hostile working environment and that the is liab e for sexual harassment in iolation ofTitle
bull
May 9 20 1 4
1 8
Disparate Impact Cases
procedure policy practice disproportionate
impact
i
employenmplemented physical excludes pplicants
employment have
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull -where an employer has a neutral selection or
that has a adverse on people in a protected group such as a written test that disproportionately excludes all or a particular type of disabled employeesbull
bull
Both Theories May Apply
bull Some c1ses ra se both dispartte trearment and disparate imp1ct issues
bull For exmple if an invesnguion reveals that m a agliry test th1t
disabled job and the test may have been adopted for discriminatory reasons the case could be analyzed under both the wsparote treatment and disparte impact theories
bull Under either theory plaintiffs in discrimination cases mcludin EEOC the burden of proving that discrunination occurred
REMEDIES
bull Disparate Treatment Cases
bull Backpay
bull Reinstatement Instatement or Front Pay
bull Compensatory Damages
bull Punitive Damages
bull Non-Monetary (Afflmlltive Relief)
bull Attorneys Fees and Cost
May 9t 20 1 4
19
Services
University Texas Medical Centerv
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REMEDIES
Disparate Impact Cases
bull Backpay
bull Reinstatement ln tatement or Front Pay
bull Non-Ivlonetaty (Aff=tive Relict)
bull Attorneys Fees and Cost
Word of Caution
Special Issues of proof in ADA and Title VII
Retaliation Claims
Challenges to Standard of Proof
bull Shift in lliCed llotive cases to but for standard of proof
bull Gross v FBL Financial 557 US 167 (2009)-But For in ADEA and Title VII Retaliation
bull of SW 133 S Ct 2517 (2013)-Reaffuming
Groubut for standard in Title VII Rettliation cases
May 9 20 1 4
20
Palmqmst v Shinselo
Srwatka v Rockwel Auromatjon Inc
lewts v Humbolt Accwisition Corv
Pinkerton y Spelm s
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOS IUM
bull Other Coutts extendmg this to ADA cases -bull 8 F3 66 I Ctr 2012) bull
But For in ADA cases implied by chain analysis as follows
- ltehabiLtation Act borrows causation standard from ADA
middot ADA because standard bears a strilung rr mblancc to the ADEA because orbull standard
bull ADEA has been determined by Grou to be a but for standard
bull 591 Fld 57 (7ch Cir 2010)-7 Cir held But For causation standard is rrquircd in ADA cSCs
bull 681 Fld 312 (6ch Cir 202)-6Cir Also applies But For in ADA cases
bull Fifth Circuit - 521 Fld 513 (Sbullbull Cir 2008)-Mixed mauve in 501 cases which incorporues ADA standards But nm to ction 504 ca s whtch requires disabiJty as the sole rrason for adve action
bullADA
bullGINA
bullPDA
bullFMLA
bullWC
Todays Focus
May 9 20 1 4
21
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull ADA bull Equal Employment Opportunity Commission (EEOC)
bull FMLA- Department of Labor (Wage amp Hour Di1ston
bull Wo rken Compensation- Stlte Workers Compensation Commissions
Purpose of the ADA FMLA and Workers Compensation Laws
bull The ADA as mended pmhbits discrimmation llinsc applicants and employees who are dosabled regtrded as disabled or haC a record of doubdny
bull The FM lA sets minimum lcac standards for employees for the binh and n bom can of a chtld placement of bull child for adoption or rosier carr to carr rar m lmmediale funily member th a J(tious health condition and for the employees serious health condo ton
bull Worlun1 Compcnsacion laAS pmide for payment of compensation md rthabilitation for wotkplace in1uries and monom1ze employer habihty
ADA and GINA
May 9 20 1 4
22
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
TWIN STATUTES
ADA Here and Now
ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability- Conditions that exist now
GINA LOOKING DOWN THE ROAD
bull based on genetic information and not on the basis of a manifested condition - Potential Conditions
23
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
RECAP ADA Overview
The Americans with
Disabilities Act
Amendments Act of 2008
(ADAAA) EEOCs Final Regulations
ADA Definition of Disability
Basic 3-part definition remains the same
bull A physical or mental impairment that substantially limits a major life activity
bull Arecord of such an impairment
bull Being regarded as having such an impairment
However Congress changed the meanings of lcey terms used In these definitions
24
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Major Life Activities
bull Statute and EEOC regulations provide two non-exhaustive lists of major life activities
bull First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts
List of major life activities is not exhaustive
bull liftingbullcaring for oneself bullbendingbull performing bull speakingbull manual tasks bullbreathingbullseeing bulllearningbull hearing bull readingbull eating bullconcentratlngbull sleeping bullthinkingbullwalking bull communicatingbullstanding bullInteracting with bullsitting bull othersbullreaching bulland working
Major Life Activities Include Major Bodily Functions
bull New category of major life activities
bull Will make it easier for individuals with many different types of impairments to establish disability
25
would
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Major Bodily Functions
bull Functions of the immune system special sense organs and skin normal cell growth digestive genitourinary bowel bladder neurological brain respiratory circulatory cardiovascular endocrine hemic lymphatic musculoskeletal reproductive
bull Operations of an individual organ within a body system such as the operation of kidney liver or pancreas
Impairments That Are Episodic or In Remission
bull Remission Vill be prong one of disabilities ifi substantially limits a major life activity
WHEN ACTIVE bull Cancer is an example of impairment that may be in
remission
bull The Employer may balance the field during the reasonable accommodation analysis
Impairments That Are Episodic or In Remission
bull Episodic Impairments that ma) not affect a person 247 but which periodically flare up
bull eg epilepsy hypertension asthma diabetes major depressive disorder bipolar disorder schizophrenia
May 9 201 4
26
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Service to Employer
bull Vtthin 10 days notice and copy of charge sent to employer
bull Employer invited to send Statement of Position and sometime respond to EEOC Request for Information
bull EEOC has subpoena power
bull Some cases may be invited to mediation- Both must agree
Mediation
bull Mediation scheduled
bull Parties meet with mediator bull FirewaU exists
bull Tries to reach voluntary settlement
bull No determination of right or wrong- no cause determination made
bull lIediated settlement is an agreement reach by the parties but to which the EEOC is also a signer
bull Compliance may be enforced by the EEOC
Investigation
bull If not resolved by mediation assigned to investigator
bull Investigation may include
a On-Sire visits andor Interviews
b Requests for Information
c Fact finding conference
d Evidence Analysis
1 2
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Determination bull Based upon the evidence violation found or not
found
bull If no violation or at any srage if no juriroiction or if EEOC probably cannot reach determination case closed and Notice of Right to Sue i sued- NRTS may be requested after 90 days
bull If violation found conciliation is attempted
bull If no settlement Notice of Right to Sue Issued or EEOC decides to litigate
bull Reconsideration may be requ ted
FAIR EMPLOYMENT PRACTICE AGENCIES
bullWorkshare Agreement
bullSubstantial Weight Review
PUBLIC SECTOR
PROCESS
13
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
EEOC Public Sector Process
middotSame EEOC Intake Investigation and Cause Determination process
middotEEOC forwards its determination to the Department of Justice (DOJ) which issues the Notice of Right to Sue
bullLitigation of Public Sector Charges determined and conducted by DOJ
EEOC Public Sector Process
middotEEOCs Strategic Plan requires Internal and External Integration of Resources
bullCollaboration of efforts and resources by EEOC and DOJ regarding Public Sector Investigations
Other Partnerships
bullInternal and External Integration of Resources has also fostered EEOC collaboration on public and Private Sector maners with
middotDOL (OFCCP amp WampH)
bullFair Employment Practice Agencies
bullAnd others who arc a part of the multi-pronged national equal employment law enforcement effort
14
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
SYSTEMIC
INVESTIGATIONS
EEOC STRATEGIC FOCUS
Basis for Systemic Enforcement
Systemic cases can be brought under any of the statutes enforced by the EEOC Including ADAAA GINA and PDA
Strategic Plan to have Sustainable Impact Most effective way to reduce and deter discriminatory practices In the workplace
Systemic cases usually Involve
company-wide practices or policies
The EEOC may request and analyze
extensive electronic data and numerous
documents conduct statistical analyses and
interview witnesses and class members
1 5
D isparate
(directed targeted)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Two Types of Systemic Discrimination Cases
bull t Systemic Disparate Treaunent Cases
bull 2 Systemic Disparate Impact Cases
Treatment Cases
bull where the discrimination was Intentional or
bull Disparate treatment cases are the most common type of cases
Three Main Types of Systemic Disparate Treatment Cases
(1) discriminatory treatment In employment
decisions such as hiring promotion and
discharge
eg An employer refuses to hire or promote
people based on their disability
May 9 20 1 4
16
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Three Main Types of Systemic Disparate Treatment Cases
(2) discriminatory rules practices and
policies eg cases where an employer has a policy practice
or rule that on its face treats people In a protected
group differendy than others such as a rule that an
employee who is returning to work from a
Reasonabfe Accommodation leave of absence must
re-test to qualify to do a job
Three Main Types of Systemic Disparate Treatment Cases
(3) harassment
eg harassment based upon corporate or workplace culture or practice or which are codified in policies or practice
Examples of Disparate Treatment In Employment Decisions
bull a hotel managers statement that he does not hire disabled applicants because they miss too much rime off work
bull a companys statement to a temporary placement agency that it wants fit people for its office positions jobs
17
engtge complained
company VII
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Examples of Disparate Treatment in Employment Decisions
bull notations on employment application$ indicating the suspected inability based upon a perceived disability of the applicant
bull a retail store regional managers statement that hiring people with disabilities as greeters would depress customers
bull A hiring managers instructions to not hire anyone with limited mobility for sales positions
Examples of Disparate Treatment In Discriminatory Rule or Policy
bull An employer has a policy prohibiting pregnant women from working in jobs that the employer believes might pose a risk to the pregnancy This policy is iUcral unless the employer can demonstrate that being male or a non-pregnant female is a bona fide occupational qualification (BFOQ) In other words the employer would have to show that sex or pregnancy actually interferes with the employees abiltty to do the job The BFOQ defense is a very narrow exception to Title VII which employers can rarely establish
Examples of Disparate Treatment In Systemic Harassment- Sex
bull On a daily basis the male managers of a company made degrading comments to the fem ale employees abOut their bodies asked them questions abOut their ex lives and requested that they in sexual activiues Some female employees about the xual conduct to the human resources department but the conduct continued The managers claim that they were just joking The evidence indJcates that women as a class were subjected to a hostile working environment and that the is liab e for sexual harassment in iolation ofTitle
bull
May 9 20 1 4
1 8
Disparate Impact Cases
procedure policy practice disproportionate
impact
i
employenmplemented physical excludes pplicants
employment have
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull -where an employer has a neutral selection or
that has a adverse on people in a protected group such as a written test that disproportionately excludes all or a particular type of disabled employeesbull
bull
Both Theories May Apply
bull Some c1ses ra se both dispartte trearment and disparate imp1ct issues
bull For exmple if an invesnguion reveals that m a agliry test th1t
disabled job and the test may have been adopted for discriminatory reasons the case could be analyzed under both the wsparote treatment and disparte impact theories
bull Under either theory plaintiffs in discrimination cases mcludin EEOC the burden of proving that discrunination occurred
REMEDIES
bull Disparate Treatment Cases
bull Backpay
bull Reinstatement Instatement or Front Pay
bull Compensatory Damages
bull Punitive Damages
bull Non-Monetary (Afflmlltive Relief)
bull Attorneys Fees and Cost
May 9t 20 1 4
19
Services
University Texas Medical Centerv
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REMEDIES
Disparate Impact Cases
bull Backpay
bull Reinstatement ln tatement or Front Pay
bull Non-Ivlonetaty (Aff=tive Relict)
bull Attorneys Fees and Cost
Word of Caution
Special Issues of proof in ADA and Title VII
Retaliation Claims
Challenges to Standard of Proof
bull Shift in lliCed llotive cases to but for standard of proof
bull Gross v FBL Financial 557 US 167 (2009)-But For in ADEA and Title VII Retaliation
bull of SW 133 S Ct 2517 (2013)-Reaffuming
Groubut for standard in Title VII Rettliation cases
May 9 20 1 4
20
Palmqmst v Shinselo
Srwatka v Rockwel Auromatjon Inc
lewts v Humbolt Accwisition Corv
Pinkerton y Spelm s
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOS IUM
bull Other Coutts extendmg this to ADA cases -bull 8 F3 66 I Ctr 2012) bull
But For in ADA cases implied by chain analysis as follows
- ltehabiLtation Act borrows causation standard from ADA
middot ADA because standard bears a strilung rr mblancc to the ADEA because orbull standard
bull ADEA has been determined by Grou to be a but for standard
bull 591 Fld 57 (7ch Cir 2010)-7 Cir held But For causation standard is rrquircd in ADA cSCs
bull 681 Fld 312 (6ch Cir 202)-6Cir Also applies But For in ADA cases
bull Fifth Circuit - 521 Fld 513 (Sbullbull Cir 2008)-Mixed mauve in 501 cases which incorporues ADA standards But nm to ction 504 ca s whtch requires disabiJty as the sole rrason for adve action
bullADA
bullGINA
bullPDA
bullFMLA
bullWC
Todays Focus
May 9 20 1 4
21
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull ADA bull Equal Employment Opportunity Commission (EEOC)
bull FMLA- Department of Labor (Wage amp Hour Di1ston
bull Wo rken Compensation- Stlte Workers Compensation Commissions
Purpose of the ADA FMLA and Workers Compensation Laws
bull The ADA as mended pmhbits discrimmation llinsc applicants and employees who are dosabled regtrded as disabled or haC a record of doubdny
bull The FM lA sets minimum lcac standards for employees for the binh and n bom can of a chtld placement of bull child for adoption or rosier carr to carr rar m lmmediale funily member th a J(tious health condition and for the employees serious health condo ton
bull Worlun1 Compcnsacion laAS pmide for payment of compensation md rthabilitation for wotkplace in1uries and monom1ze employer habihty
ADA and GINA
May 9 20 1 4
22
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
TWIN STATUTES
ADA Here and Now
ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability- Conditions that exist now
GINA LOOKING DOWN THE ROAD
bull based on genetic information and not on the basis of a manifested condition - Potential Conditions
23
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
RECAP ADA Overview
The Americans with
Disabilities Act
Amendments Act of 2008
(ADAAA) EEOCs Final Regulations
ADA Definition of Disability
Basic 3-part definition remains the same
bull A physical or mental impairment that substantially limits a major life activity
bull Arecord of such an impairment
bull Being regarded as having such an impairment
However Congress changed the meanings of lcey terms used In these definitions
24
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Major Life Activities
bull Statute and EEOC regulations provide two non-exhaustive lists of major life activities
bull First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts
List of major life activities is not exhaustive
bull liftingbullcaring for oneself bullbendingbull performing bull speakingbull manual tasks bullbreathingbullseeing bulllearningbull hearing bull readingbull eating bullconcentratlngbull sleeping bullthinkingbullwalking bull communicatingbullstanding bullInteracting with bullsitting bull othersbullreaching bulland working
Major Life Activities Include Major Bodily Functions
bull New category of major life activities
bull Will make it easier for individuals with many different types of impairments to establish disability
25
would
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Major Bodily Functions
bull Functions of the immune system special sense organs and skin normal cell growth digestive genitourinary bowel bladder neurological brain respiratory circulatory cardiovascular endocrine hemic lymphatic musculoskeletal reproductive
bull Operations of an individual organ within a body system such as the operation of kidney liver or pancreas
Impairments That Are Episodic or In Remission
bull Remission Vill be prong one of disabilities ifi substantially limits a major life activity
WHEN ACTIVE bull Cancer is an example of impairment that may be in
remission
bull The Employer may balance the field during the reasonable accommodation analysis
Impairments That Are Episodic or In Remission
bull Episodic Impairments that ma) not affect a person 247 but which periodically flare up
bull eg epilepsy hypertension asthma diabetes major depressive disorder bipolar disorder schizophrenia
May 9 201 4
26
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Determination bull Based upon the evidence violation found or not
found
bull If no violation or at any srage if no juriroiction or if EEOC probably cannot reach determination case closed and Notice of Right to Sue i sued- NRTS may be requested after 90 days
bull If violation found conciliation is attempted
bull If no settlement Notice of Right to Sue Issued or EEOC decides to litigate
bull Reconsideration may be requ ted
FAIR EMPLOYMENT PRACTICE AGENCIES
bullWorkshare Agreement
bullSubstantial Weight Review
PUBLIC SECTOR
PROCESS
13
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
EEOC Public Sector Process
middotSame EEOC Intake Investigation and Cause Determination process
middotEEOC forwards its determination to the Department of Justice (DOJ) which issues the Notice of Right to Sue
bullLitigation of Public Sector Charges determined and conducted by DOJ
EEOC Public Sector Process
middotEEOCs Strategic Plan requires Internal and External Integration of Resources
bullCollaboration of efforts and resources by EEOC and DOJ regarding Public Sector Investigations
Other Partnerships
bullInternal and External Integration of Resources has also fostered EEOC collaboration on public and Private Sector maners with
middotDOL (OFCCP amp WampH)
bullFair Employment Practice Agencies
bullAnd others who arc a part of the multi-pronged national equal employment law enforcement effort
14
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
SYSTEMIC
INVESTIGATIONS
EEOC STRATEGIC FOCUS
Basis for Systemic Enforcement
Systemic cases can be brought under any of the statutes enforced by the EEOC Including ADAAA GINA and PDA
Strategic Plan to have Sustainable Impact Most effective way to reduce and deter discriminatory practices In the workplace
Systemic cases usually Involve
company-wide practices or policies
The EEOC may request and analyze
extensive electronic data and numerous
documents conduct statistical analyses and
interview witnesses and class members
1 5
D isparate
(directed targeted)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Two Types of Systemic Discrimination Cases
bull t Systemic Disparate Treaunent Cases
bull 2 Systemic Disparate Impact Cases
Treatment Cases
bull where the discrimination was Intentional or
bull Disparate treatment cases are the most common type of cases
Three Main Types of Systemic Disparate Treatment Cases
(1) discriminatory treatment In employment
decisions such as hiring promotion and
discharge
eg An employer refuses to hire or promote
people based on their disability
May 9 20 1 4
16
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Three Main Types of Systemic Disparate Treatment Cases
(2) discriminatory rules practices and
policies eg cases where an employer has a policy practice
or rule that on its face treats people In a protected
group differendy than others such as a rule that an
employee who is returning to work from a
Reasonabfe Accommodation leave of absence must
re-test to qualify to do a job
Three Main Types of Systemic Disparate Treatment Cases
(3) harassment
eg harassment based upon corporate or workplace culture or practice or which are codified in policies or practice
Examples of Disparate Treatment In Employment Decisions
bull a hotel managers statement that he does not hire disabled applicants because they miss too much rime off work
bull a companys statement to a temporary placement agency that it wants fit people for its office positions jobs
17
engtge complained
company VII
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Examples of Disparate Treatment in Employment Decisions
bull notations on employment application$ indicating the suspected inability based upon a perceived disability of the applicant
bull a retail store regional managers statement that hiring people with disabilities as greeters would depress customers
bull A hiring managers instructions to not hire anyone with limited mobility for sales positions
Examples of Disparate Treatment In Discriminatory Rule or Policy
bull An employer has a policy prohibiting pregnant women from working in jobs that the employer believes might pose a risk to the pregnancy This policy is iUcral unless the employer can demonstrate that being male or a non-pregnant female is a bona fide occupational qualification (BFOQ) In other words the employer would have to show that sex or pregnancy actually interferes with the employees abiltty to do the job The BFOQ defense is a very narrow exception to Title VII which employers can rarely establish
Examples of Disparate Treatment In Systemic Harassment- Sex
bull On a daily basis the male managers of a company made degrading comments to the fem ale employees abOut their bodies asked them questions abOut their ex lives and requested that they in sexual activiues Some female employees about the xual conduct to the human resources department but the conduct continued The managers claim that they were just joking The evidence indJcates that women as a class were subjected to a hostile working environment and that the is liab e for sexual harassment in iolation ofTitle
bull
May 9 20 1 4
1 8
Disparate Impact Cases
procedure policy practice disproportionate
impact
i
employenmplemented physical excludes pplicants
employment have
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull -where an employer has a neutral selection or
that has a adverse on people in a protected group such as a written test that disproportionately excludes all or a particular type of disabled employeesbull
bull
Both Theories May Apply
bull Some c1ses ra se both dispartte trearment and disparate imp1ct issues
bull For exmple if an invesnguion reveals that m a agliry test th1t
disabled job and the test may have been adopted for discriminatory reasons the case could be analyzed under both the wsparote treatment and disparte impact theories
bull Under either theory plaintiffs in discrimination cases mcludin EEOC the burden of proving that discrunination occurred
REMEDIES
bull Disparate Treatment Cases
bull Backpay
bull Reinstatement Instatement or Front Pay
bull Compensatory Damages
bull Punitive Damages
bull Non-Monetary (Afflmlltive Relief)
bull Attorneys Fees and Cost
May 9t 20 1 4
19
Services
University Texas Medical Centerv
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REMEDIES
Disparate Impact Cases
bull Backpay
bull Reinstatement ln tatement or Front Pay
bull Non-Ivlonetaty (Aff=tive Relict)
bull Attorneys Fees and Cost
Word of Caution
Special Issues of proof in ADA and Title VII
Retaliation Claims
Challenges to Standard of Proof
bull Shift in lliCed llotive cases to but for standard of proof
bull Gross v FBL Financial 557 US 167 (2009)-But For in ADEA and Title VII Retaliation
bull of SW 133 S Ct 2517 (2013)-Reaffuming
Groubut for standard in Title VII Rettliation cases
May 9 20 1 4
20
Palmqmst v Shinselo
Srwatka v Rockwel Auromatjon Inc
lewts v Humbolt Accwisition Corv
Pinkerton y Spelm s
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOS IUM
bull Other Coutts extendmg this to ADA cases -bull 8 F3 66 I Ctr 2012) bull
But For in ADA cases implied by chain analysis as follows
- ltehabiLtation Act borrows causation standard from ADA
middot ADA because standard bears a strilung rr mblancc to the ADEA because orbull standard
bull ADEA has been determined by Grou to be a but for standard
bull 591 Fld 57 (7ch Cir 2010)-7 Cir held But For causation standard is rrquircd in ADA cSCs
bull 681 Fld 312 (6ch Cir 202)-6Cir Also applies But For in ADA cases
bull Fifth Circuit - 521 Fld 513 (Sbullbull Cir 2008)-Mixed mauve in 501 cases which incorporues ADA standards But nm to ction 504 ca s whtch requires disabiJty as the sole rrason for adve action
bullADA
bullGINA
bullPDA
bullFMLA
bullWC
Todays Focus
May 9 20 1 4
21
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull ADA bull Equal Employment Opportunity Commission (EEOC)
bull FMLA- Department of Labor (Wage amp Hour Di1ston
bull Wo rken Compensation- Stlte Workers Compensation Commissions
Purpose of the ADA FMLA and Workers Compensation Laws
bull The ADA as mended pmhbits discrimmation llinsc applicants and employees who are dosabled regtrded as disabled or haC a record of doubdny
bull The FM lA sets minimum lcac standards for employees for the binh and n bom can of a chtld placement of bull child for adoption or rosier carr to carr rar m lmmediale funily member th a J(tious health condition and for the employees serious health condo ton
bull Worlun1 Compcnsacion laAS pmide for payment of compensation md rthabilitation for wotkplace in1uries and monom1ze employer habihty
ADA and GINA
May 9 20 1 4
22
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
TWIN STATUTES
ADA Here and Now
ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability- Conditions that exist now
GINA LOOKING DOWN THE ROAD
bull based on genetic information and not on the basis of a manifested condition - Potential Conditions
23
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
RECAP ADA Overview
The Americans with
Disabilities Act
Amendments Act of 2008
(ADAAA) EEOCs Final Regulations
ADA Definition of Disability
Basic 3-part definition remains the same
bull A physical or mental impairment that substantially limits a major life activity
bull Arecord of such an impairment
bull Being regarded as having such an impairment
However Congress changed the meanings of lcey terms used In these definitions
24
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Major Life Activities
bull Statute and EEOC regulations provide two non-exhaustive lists of major life activities
bull First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts
List of major life activities is not exhaustive
bull liftingbullcaring for oneself bullbendingbull performing bull speakingbull manual tasks bullbreathingbullseeing bulllearningbull hearing bull readingbull eating bullconcentratlngbull sleeping bullthinkingbullwalking bull communicatingbullstanding bullInteracting with bullsitting bull othersbullreaching bulland working
Major Life Activities Include Major Bodily Functions
bull New category of major life activities
bull Will make it easier for individuals with many different types of impairments to establish disability
25
would
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Major Bodily Functions
bull Functions of the immune system special sense organs and skin normal cell growth digestive genitourinary bowel bladder neurological brain respiratory circulatory cardiovascular endocrine hemic lymphatic musculoskeletal reproductive
bull Operations of an individual organ within a body system such as the operation of kidney liver or pancreas
Impairments That Are Episodic or In Remission
bull Remission Vill be prong one of disabilities ifi substantially limits a major life activity
WHEN ACTIVE bull Cancer is an example of impairment that may be in
remission
bull The Employer may balance the field during the reasonable accommodation analysis
Impairments That Are Episodic or In Remission
bull Episodic Impairments that ma) not affect a person 247 but which periodically flare up
bull eg epilepsy hypertension asthma diabetes major depressive disorder bipolar disorder schizophrenia
May 9 201 4
26
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
EEOC Public Sector Process
middotSame EEOC Intake Investigation and Cause Determination process
middotEEOC forwards its determination to the Department of Justice (DOJ) which issues the Notice of Right to Sue
bullLitigation of Public Sector Charges determined and conducted by DOJ
EEOC Public Sector Process
middotEEOCs Strategic Plan requires Internal and External Integration of Resources
bullCollaboration of efforts and resources by EEOC and DOJ regarding Public Sector Investigations
Other Partnerships
bullInternal and External Integration of Resources has also fostered EEOC collaboration on public and Private Sector maners with
middotDOL (OFCCP amp WampH)
bullFair Employment Practice Agencies
bullAnd others who arc a part of the multi-pronged national equal employment law enforcement effort
14
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
SYSTEMIC
INVESTIGATIONS
EEOC STRATEGIC FOCUS
Basis for Systemic Enforcement
Systemic cases can be brought under any of the statutes enforced by the EEOC Including ADAAA GINA and PDA
Strategic Plan to have Sustainable Impact Most effective way to reduce and deter discriminatory practices In the workplace
Systemic cases usually Involve
company-wide practices or policies
The EEOC may request and analyze
extensive electronic data and numerous
documents conduct statistical analyses and
interview witnesses and class members
1 5
D isparate
(directed targeted)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Two Types of Systemic Discrimination Cases
bull t Systemic Disparate Treaunent Cases
bull 2 Systemic Disparate Impact Cases
Treatment Cases
bull where the discrimination was Intentional or
bull Disparate treatment cases are the most common type of cases
Three Main Types of Systemic Disparate Treatment Cases
(1) discriminatory treatment In employment
decisions such as hiring promotion and
discharge
eg An employer refuses to hire or promote
people based on their disability
May 9 20 1 4
16
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Three Main Types of Systemic Disparate Treatment Cases
(2) discriminatory rules practices and
policies eg cases where an employer has a policy practice
or rule that on its face treats people In a protected
group differendy than others such as a rule that an
employee who is returning to work from a
Reasonabfe Accommodation leave of absence must
re-test to qualify to do a job
Three Main Types of Systemic Disparate Treatment Cases
(3) harassment
eg harassment based upon corporate or workplace culture or practice or which are codified in policies or practice
Examples of Disparate Treatment In Employment Decisions
bull a hotel managers statement that he does not hire disabled applicants because they miss too much rime off work
bull a companys statement to a temporary placement agency that it wants fit people for its office positions jobs
17
engtge complained
company VII
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Examples of Disparate Treatment in Employment Decisions
bull notations on employment application$ indicating the suspected inability based upon a perceived disability of the applicant
bull a retail store regional managers statement that hiring people with disabilities as greeters would depress customers
bull A hiring managers instructions to not hire anyone with limited mobility for sales positions
Examples of Disparate Treatment In Discriminatory Rule or Policy
bull An employer has a policy prohibiting pregnant women from working in jobs that the employer believes might pose a risk to the pregnancy This policy is iUcral unless the employer can demonstrate that being male or a non-pregnant female is a bona fide occupational qualification (BFOQ) In other words the employer would have to show that sex or pregnancy actually interferes with the employees abiltty to do the job The BFOQ defense is a very narrow exception to Title VII which employers can rarely establish
Examples of Disparate Treatment In Systemic Harassment- Sex
bull On a daily basis the male managers of a company made degrading comments to the fem ale employees abOut their bodies asked them questions abOut their ex lives and requested that they in sexual activiues Some female employees about the xual conduct to the human resources department but the conduct continued The managers claim that they were just joking The evidence indJcates that women as a class were subjected to a hostile working environment and that the is liab e for sexual harassment in iolation ofTitle
bull
May 9 20 1 4
1 8
Disparate Impact Cases
procedure policy practice disproportionate
impact
i
employenmplemented physical excludes pplicants
employment have
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull -where an employer has a neutral selection or
that has a adverse on people in a protected group such as a written test that disproportionately excludes all or a particular type of disabled employeesbull
bull
Both Theories May Apply
bull Some c1ses ra se both dispartte trearment and disparate imp1ct issues
bull For exmple if an invesnguion reveals that m a agliry test th1t
disabled job and the test may have been adopted for discriminatory reasons the case could be analyzed under both the wsparote treatment and disparte impact theories
bull Under either theory plaintiffs in discrimination cases mcludin EEOC the burden of proving that discrunination occurred
REMEDIES
bull Disparate Treatment Cases
bull Backpay
bull Reinstatement Instatement or Front Pay
bull Compensatory Damages
bull Punitive Damages
bull Non-Monetary (Afflmlltive Relief)
bull Attorneys Fees and Cost
May 9t 20 1 4
19
Services
University Texas Medical Centerv
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REMEDIES
Disparate Impact Cases
bull Backpay
bull Reinstatement ln tatement or Front Pay
bull Non-Ivlonetaty (Aff=tive Relict)
bull Attorneys Fees and Cost
Word of Caution
Special Issues of proof in ADA and Title VII
Retaliation Claims
Challenges to Standard of Proof
bull Shift in lliCed llotive cases to but for standard of proof
bull Gross v FBL Financial 557 US 167 (2009)-But For in ADEA and Title VII Retaliation
bull of SW 133 S Ct 2517 (2013)-Reaffuming
Groubut for standard in Title VII Rettliation cases
May 9 20 1 4
20
Palmqmst v Shinselo
Srwatka v Rockwel Auromatjon Inc
lewts v Humbolt Accwisition Corv
Pinkerton y Spelm s
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOS IUM
bull Other Coutts extendmg this to ADA cases -bull 8 F3 66 I Ctr 2012) bull
But For in ADA cases implied by chain analysis as follows
- ltehabiLtation Act borrows causation standard from ADA
middot ADA because standard bears a strilung rr mblancc to the ADEA because orbull standard
bull ADEA has been determined by Grou to be a but for standard
bull 591 Fld 57 (7ch Cir 2010)-7 Cir held But For causation standard is rrquircd in ADA cSCs
bull 681 Fld 312 (6ch Cir 202)-6Cir Also applies But For in ADA cases
bull Fifth Circuit - 521 Fld 513 (Sbullbull Cir 2008)-Mixed mauve in 501 cases which incorporues ADA standards But nm to ction 504 ca s whtch requires disabiJty as the sole rrason for adve action
bullADA
bullGINA
bullPDA
bullFMLA
bullWC
Todays Focus
May 9 20 1 4
21
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull ADA bull Equal Employment Opportunity Commission (EEOC)
bull FMLA- Department of Labor (Wage amp Hour Di1ston
bull Wo rken Compensation- Stlte Workers Compensation Commissions
Purpose of the ADA FMLA and Workers Compensation Laws
bull The ADA as mended pmhbits discrimmation llinsc applicants and employees who are dosabled regtrded as disabled or haC a record of doubdny
bull The FM lA sets minimum lcac standards for employees for the binh and n bom can of a chtld placement of bull child for adoption or rosier carr to carr rar m lmmediale funily member th a J(tious health condition and for the employees serious health condo ton
bull Worlun1 Compcnsacion laAS pmide for payment of compensation md rthabilitation for wotkplace in1uries and monom1ze employer habihty
ADA and GINA
May 9 20 1 4
22
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
TWIN STATUTES
ADA Here and Now
ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability- Conditions that exist now
GINA LOOKING DOWN THE ROAD
bull based on genetic information and not on the basis of a manifested condition - Potential Conditions
23
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
RECAP ADA Overview
The Americans with
Disabilities Act
Amendments Act of 2008
(ADAAA) EEOCs Final Regulations
ADA Definition of Disability
Basic 3-part definition remains the same
bull A physical or mental impairment that substantially limits a major life activity
bull Arecord of such an impairment
bull Being regarded as having such an impairment
However Congress changed the meanings of lcey terms used In these definitions
24
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Major Life Activities
bull Statute and EEOC regulations provide two non-exhaustive lists of major life activities
bull First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts
List of major life activities is not exhaustive
bull liftingbullcaring for oneself bullbendingbull performing bull speakingbull manual tasks bullbreathingbullseeing bulllearningbull hearing bull readingbull eating bullconcentratlngbull sleeping bullthinkingbullwalking bull communicatingbullstanding bullInteracting with bullsitting bull othersbullreaching bulland working
Major Life Activities Include Major Bodily Functions
bull New category of major life activities
bull Will make it easier for individuals with many different types of impairments to establish disability
25
would
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Major Bodily Functions
bull Functions of the immune system special sense organs and skin normal cell growth digestive genitourinary bowel bladder neurological brain respiratory circulatory cardiovascular endocrine hemic lymphatic musculoskeletal reproductive
bull Operations of an individual organ within a body system such as the operation of kidney liver or pancreas
Impairments That Are Episodic or In Remission
bull Remission Vill be prong one of disabilities ifi substantially limits a major life activity
WHEN ACTIVE bull Cancer is an example of impairment that may be in
remission
bull The Employer may balance the field during the reasonable accommodation analysis
Impairments That Are Episodic or In Remission
bull Episodic Impairments that ma) not affect a person 247 but which periodically flare up
bull eg epilepsy hypertension asthma diabetes major depressive disorder bipolar disorder schizophrenia
May 9 201 4
26
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
SYSTEMIC
INVESTIGATIONS
EEOC STRATEGIC FOCUS
Basis for Systemic Enforcement
Systemic cases can be brought under any of the statutes enforced by the EEOC Including ADAAA GINA and PDA
Strategic Plan to have Sustainable Impact Most effective way to reduce and deter discriminatory practices In the workplace
Systemic cases usually Involve
company-wide practices or policies
The EEOC may request and analyze
extensive electronic data and numerous
documents conduct statistical analyses and
interview witnesses and class members
1 5
D isparate
(directed targeted)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Two Types of Systemic Discrimination Cases
bull t Systemic Disparate Treaunent Cases
bull 2 Systemic Disparate Impact Cases
Treatment Cases
bull where the discrimination was Intentional or
bull Disparate treatment cases are the most common type of cases
Three Main Types of Systemic Disparate Treatment Cases
(1) discriminatory treatment In employment
decisions such as hiring promotion and
discharge
eg An employer refuses to hire or promote
people based on their disability
May 9 20 1 4
16
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Three Main Types of Systemic Disparate Treatment Cases
(2) discriminatory rules practices and
policies eg cases where an employer has a policy practice
or rule that on its face treats people In a protected
group differendy than others such as a rule that an
employee who is returning to work from a
Reasonabfe Accommodation leave of absence must
re-test to qualify to do a job
Three Main Types of Systemic Disparate Treatment Cases
(3) harassment
eg harassment based upon corporate or workplace culture or practice or which are codified in policies or practice
Examples of Disparate Treatment In Employment Decisions
bull a hotel managers statement that he does not hire disabled applicants because they miss too much rime off work
bull a companys statement to a temporary placement agency that it wants fit people for its office positions jobs
17
engtge complained
company VII
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Examples of Disparate Treatment in Employment Decisions
bull notations on employment application$ indicating the suspected inability based upon a perceived disability of the applicant
bull a retail store regional managers statement that hiring people with disabilities as greeters would depress customers
bull A hiring managers instructions to not hire anyone with limited mobility for sales positions
Examples of Disparate Treatment In Discriminatory Rule or Policy
bull An employer has a policy prohibiting pregnant women from working in jobs that the employer believes might pose a risk to the pregnancy This policy is iUcral unless the employer can demonstrate that being male or a non-pregnant female is a bona fide occupational qualification (BFOQ) In other words the employer would have to show that sex or pregnancy actually interferes with the employees abiltty to do the job The BFOQ defense is a very narrow exception to Title VII which employers can rarely establish
Examples of Disparate Treatment In Systemic Harassment- Sex
bull On a daily basis the male managers of a company made degrading comments to the fem ale employees abOut their bodies asked them questions abOut their ex lives and requested that they in sexual activiues Some female employees about the xual conduct to the human resources department but the conduct continued The managers claim that they were just joking The evidence indJcates that women as a class were subjected to a hostile working environment and that the is liab e for sexual harassment in iolation ofTitle
bull
May 9 20 1 4
1 8
Disparate Impact Cases
procedure policy practice disproportionate
impact
i
employenmplemented physical excludes pplicants
employment have
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull -where an employer has a neutral selection or
that has a adverse on people in a protected group such as a written test that disproportionately excludes all or a particular type of disabled employeesbull
bull
Both Theories May Apply
bull Some c1ses ra se both dispartte trearment and disparate imp1ct issues
bull For exmple if an invesnguion reveals that m a agliry test th1t
disabled job and the test may have been adopted for discriminatory reasons the case could be analyzed under both the wsparote treatment and disparte impact theories
bull Under either theory plaintiffs in discrimination cases mcludin EEOC the burden of proving that discrunination occurred
REMEDIES
bull Disparate Treatment Cases
bull Backpay
bull Reinstatement Instatement or Front Pay
bull Compensatory Damages
bull Punitive Damages
bull Non-Monetary (Afflmlltive Relief)
bull Attorneys Fees and Cost
May 9t 20 1 4
19
Services
University Texas Medical Centerv
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REMEDIES
Disparate Impact Cases
bull Backpay
bull Reinstatement ln tatement or Front Pay
bull Non-Ivlonetaty (Aff=tive Relict)
bull Attorneys Fees and Cost
Word of Caution
Special Issues of proof in ADA and Title VII
Retaliation Claims
Challenges to Standard of Proof
bull Shift in lliCed llotive cases to but for standard of proof
bull Gross v FBL Financial 557 US 167 (2009)-But For in ADEA and Title VII Retaliation
bull of SW 133 S Ct 2517 (2013)-Reaffuming
Groubut for standard in Title VII Rettliation cases
May 9 20 1 4
20
Palmqmst v Shinselo
Srwatka v Rockwel Auromatjon Inc
lewts v Humbolt Accwisition Corv
Pinkerton y Spelm s
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOS IUM
bull Other Coutts extendmg this to ADA cases -bull 8 F3 66 I Ctr 2012) bull
But For in ADA cases implied by chain analysis as follows
- ltehabiLtation Act borrows causation standard from ADA
middot ADA because standard bears a strilung rr mblancc to the ADEA because orbull standard
bull ADEA has been determined by Grou to be a but for standard
bull 591 Fld 57 (7ch Cir 2010)-7 Cir held But For causation standard is rrquircd in ADA cSCs
bull 681 Fld 312 (6ch Cir 202)-6Cir Also applies But For in ADA cases
bull Fifth Circuit - 521 Fld 513 (Sbullbull Cir 2008)-Mixed mauve in 501 cases which incorporues ADA standards But nm to ction 504 ca s whtch requires disabiJty as the sole rrason for adve action
bullADA
bullGINA
bullPDA
bullFMLA
bullWC
Todays Focus
May 9 20 1 4
21
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull ADA bull Equal Employment Opportunity Commission (EEOC)
bull FMLA- Department of Labor (Wage amp Hour Di1ston
bull Wo rken Compensation- Stlte Workers Compensation Commissions
Purpose of the ADA FMLA and Workers Compensation Laws
bull The ADA as mended pmhbits discrimmation llinsc applicants and employees who are dosabled regtrded as disabled or haC a record of doubdny
bull The FM lA sets minimum lcac standards for employees for the binh and n bom can of a chtld placement of bull child for adoption or rosier carr to carr rar m lmmediale funily member th a J(tious health condition and for the employees serious health condo ton
bull Worlun1 Compcnsacion laAS pmide for payment of compensation md rthabilitation for wotkplace in1uries and monom1ze employer habihty
ADA and GINA
May 9 20 1 4
22
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
TWIN STATUTES
ADA Here and Now
ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability- Conditions that exist now
GINA LOOKING DOWN THE ROAD
bull based on genetic information and not on the basis of a manifested condition - Potential Conditions
23
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
RECAP ADA Overview
The Americans with
Disabilities Act
Amendments Act of 2008
(ADAAA) EEOCs Final Regulations
ADA Definition of Disability
Basic 3-part definition remains the same
bull A physical or mental impairment that substantially limits a major life activity
bull Arecord of such an impairment
bull Being regarded as having such an impairment
However Congress changed the meanings of lcey terms used In these definitions
24
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Major Life Activities
bull Statute and EEOC regulations provide two non-exhaustive lists of major life activities
bull First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts
List of major life activities is not exhaustive
bull liftingbullcaring for oneself bullbendingbull performing bull speakingbull manual tasks bullbreathingbullseeing bulllearningbull hearing bull readingbull eating bullconcentratlngbull sleeping bullthinkingbullwalking bull communicatingbullstanding bullInteracting with bullsitting bull othersbullreaching bulland working
Major Life Activities Include Major Bodily Functions
bull New category of major life activities
bull Will make it easier for individuals with many different types of impairments to establish disability
25
would
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Major Bodily Functions
bull Functions of the immune system special sense organs and skin normal cell growth digestive genitourinary bowel bladder neurological brain respiratory circulatory cardiovascular endocrine hemic lymphatic musculoskeletal reproductive
bull Operations of an individual organ within a body system such as the operation of kidney liver or pancreas
Impairments That Are Episodic or In Remission
bull Remission Vill be prong one of disabilities ifi substantially limits a major life activity
WHEN ACTIVE bull Cancer is an example of impairment that may be in
remission
bull The Employer may balance the field during the reasonable accommodation analysis
Impairments That Are Episodic or In Remission
bull Episodic Impairments that ma) not affect a person 247 but which periodically flare up
bull eg epilepsy hypertension asthma diabetes major depressive disorder bipolar disorder schizophrenia
May 9 201 4
26
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
D isparate
(directed targeted)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Two Types of Systemic Discrimination Cases
bull t Systemic Disparate Treaunent Cases
bull 2 Systemic Disparate Impact Cases
Treatment Cases
bull where the discrimination was Intentional or
bull Disparate treatment cases are the most common type of cases
Three Main Types of Systemic Disparate Treatment Cases
(1) discriminatory treatment In employment
decisions such as hiring promotion and
discharge
eg An employer refuses to hire or promote
people based on their disability
May 9 20 1 4
16
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Three Main Types of Systemic Disparate Treatment Cases
(2) discriminatory rules practices and
policies eg cases where an employer has a policy practice
or rule that on its face treats people In a protected
group differendy than others such as a rule that an
employee who is returning to work from a
Reasonabfe Accommodation leave of absence must
re-test to qualify to do a job
Three Main Types of Systemic Disparate Treatment Cases
(3) harassment
eg harassment based upon corporate or workplace culture or practice or which are codified in policies or practice
Examples of Disparate Treatment In Employment Decisions
bull a hotel managers statement that he does not hire disabled applicants because they miss too much rime off work
bull a companys statement to a temporary placement agency that it wants fit people for its office positions jobs
17
engtge complained
company VII
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Examples of Disparate Treatment in Employment Decisions
bull notations on employment application$ indicating the suspected inability based upon a perceived disability of the applicant
bull a retail store regional managers statement that hiring people with disabilities as greeters would depress customers
bull A hiring managers instructions to not hire anyone with limited mobility for sales positions
Examples of Disparate Treatment In Discriminatory Rule or Policy
bull An employer has a policy prohibiting pregnant women from working in jobs that the employer believes might pose a risk to the pregnancy This policy is iUcral unless the employer can demonstrate that being male or a non-pregnant female is a bona fide occupational qualification (BFOQ) In other words the employer would have to show that sex or pregnancy actually interferes with the employees abiltty to do the job The BFOQ defense is a very narrow exception to Title VII which employers can rarely establish
Examples of Disparate Treatment In Systemic Harassment- Sex
bull On a daily basis the male managers of a company made degrading comments to the fem ale employees abOut their bodies asked them questions abOut their ex lives and requested that they in sexual activiues Some female employees about the xual conduct to the human resources department but the conduct continued The managers claim that they were just joking The evidence indJcates that women as a class were subjected to a hostile working environment and that the is liab e for sexual harassment in iolation ofTitle
bull
May 9 20 1 4
1 8
Disparate Impact Cases
procedure policy practice disproportionate
impact
i
employenmplemented physical excludes pplicants
employment have
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull -where an employer has a neutral selection or
that has a adverse on people in a protected group such as a written test that disproportionately excludes all or a particular type of disabled employeesbull
bull
Both Theories May Apply
bull Some c1ses ra se both dispartte trearment and disparate imp1ct issues
bull For exmple if an invesnguion reveals that m a agliry test th1t
disabled job and the test may have been adopted for discriminatory reasons the case could be analyzed under both the wsparote treatment and disparte impact theories
bull Under either theory plaintiffs in discrimination cases mcludin EEOC the burden of proving that discrunination occurred
REMEDIES
bull Disparate Treatment Cases
bull Backpay
bull Reinstatement Instatement or Front Pay
bull Compensatory Damages
bull Punitive Damages
bull Non-Monetary (Afflmlltive Relief)
bull Attorneys Fees and Cost
May 9t 20 1 4
19
Services
University Texas Medical Centerv
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REMEDIES
Disparate Impact Cases
bull Backpay
bull Reinstatement ln tatement or Front Pay
bull Non-Ivlonetaty (Aff=tive Relict)
bull Attorneys Fees and Cost
Word of Caution
Special Issues of proof in ADA and Title VII
Retaliation Claims
Challenges to Standard of Proof
bull Shift in lliCed llotive cases to but for standard of proof
bull Gross v FBL Financial 557 US 167 (2009)-But For in ADEA and Title VII Retaliation
bull of SW 133 S Ct 2517 (2013)-Reaffuming
Groubut for standard in Title VII Rettliation cases
May 9 20 1 4
20
Palmqmst v Shinselo
Srwatka v Rockwel Auromatjon Inc
lewts v Humbolt Accwisition Corv
Pinkerton y Spelm s
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOS IUM
bull Other Coutts extendmg this to ADA cases -bull 8 F3 66 I Ctr 2012) bull
But For in ADA cases implied by chain analysis as follows
- ltehabiLtation Act borrows causation standard from ADA
middot ADA because standard bears a strilung rr mblancc to the ADEA because orbull standard
bull ADEA has been determined by Grou to be a but for standard
bull 591 Fld 57 (7ch Cir 2010)-7 Cir held But For causation standard is rrquircd in ADA cSCs
bull 681 Fld 312 (6ch Cir 202)-6Cir Also applies But For in ADA cases
bull Fifth Circuit - 521 Fld 513 (Sbullbull Cir 2008)-Mixed mauve in 501 cases which incorporues ADA standards But nm to ction 504 ca s whtch requires disabiJty as the sole rrason for adve action
bullADA
bullGINA
bullPDA
bullFMLA
bullWC
Todays Focus
May 9 20 1 4
21
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull ADA bull Equal Employment Opportunity Commission (EEOC)
bull FMLA- Department of Labor (Wage amp Hour Di1ston
bull Wo rken Compensation- Stlte Workers Compensation Commissions
Purpose of the ADA FMLA and Workers Compensation Laws
bull The ADA as mended pmhbits discrimmation llinsc applicants and employees who are dosabled regtrded as disabled or haC a record of doubdny
bull The FM lA sets minimum lcac standards for employees for the binh and n bom can of a chtld placement of bull child for adoption or rosier carr to carr rar m lmmediale funily member th a J(tious health condition and for the employees serious health condo ton
bull Worlun1 Compcnsacion laAS pmide for payment of compensation md rthabilitation for wotkplace in1uries and monom1ze employer habihty
ADA and GINA
May 9 20 1 4
22
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
TWIN STATUTES
ADA Here and Now
ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability- Conditions that exist now
GINA LOOKING DOWN THE ROAD
bull based on genetic information and not on the basis of a manifested condition - Potential Conditions
23
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
RECAP ADA Overview
The Americans with
Disabilities Act
Amendments Act of 2008
(ADAAA) EEOCs Final Regulations
ADA Definition of Disability
Basic 3-part definition remains the same
bull A physical or mental impairment that substantially limits a major life activity
bull Arecord of such an impairment
bull Being regarded as having such an impairment
However Congress changed the meanings of lcey terms used In these definitions
24
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Major Life Activities
bull Statute and EEOC regulations provide two non-exhaustive lists of major life activities
bull First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts
List of major life activities is not exhaustive
bull liftingbullcaring for oneself bullbendingbull performing bull speakingbull manual tasks bullbreathingbullseeing bulllearningbull hearing bull readingbull eating bullconcentratlngbull sleeping bullthinkingbullwalking bull communicatingbullstanding bullInteracting with bullsitting bull othersbullreaching bulland working
Major Life Activities Include Major Bodily Functions
bull New category of major life activities
bull Will make it easier for individuals with many different types of impairments to establish disability
25
would
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Major Bodily Functions
bull Functions of the immune system special sense organs and skin normal cell growth digestive genitourinary bowel bladder neurological brain respiratory circulatory cardiovascular endocrine hemic lymphatic musculoskeletal reproductive
bull Operations of an individual organ within a body system such as the operation of kidney liver or pancreas
Impairments That Are Episodic or In Remission
bull Remission Vill be prong one of disabilities ifi substantially limits a major life activity
WHEN ACTIVE bull Cancer is an example of impairment that may be in
remission
bull The Employer may balance the field during the reasonable accommodation analysis
Impairments That Are Episodic or In Remission
bull Episodic Impairments that ma) not affect a person 247 but which periodically flare up
bull eg epilepsy hypertension asthma diabetes major depressive disorder bipolar disorder schizophrenia
May 9 201 4
26
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Three Main Types of Systemic Disparate Treatment Cases
(2) discriminatory rules practices and
policies eg cases where an employer has a policy practice
or rule that on its face treats people In a protected
group differendy than others such as a rule that an
employee who is returning to work from a
Reasonabfe Accommodation leave of absence must
re-test to qualify to do a job
Three Main Types of Systemic Disparate Treatment Cases
(3) harassment
eg harassment based upon corporate or workplace culture or practice or which are codified in policies or practice
Examples of Disparate Treatment In Employment Decisions
bull a hotel managers statement that he does not hire disabled applicants because they miss too much rime off work
bull a companys statement to a temporary placement agency that it wants fit people for its office positions jobs
17
engtge complained
company VII
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Examples of Disparate Treatment in Employment Decisions
bull notations on employment application$ indicating the suspected inability based upon a perceived disability of the applicant
bull a retail store regional managers statement that hiring people with disabilities as greeters would depress customers
bull A hiring managers instructions to not hire anyone with limited mobility for sales positions
Examples of Disparate Treatment In Discriminatory Rule or Policy
bull An employer has a policy prohibiting pregnant women from working in jobs that the employer believes might pose a risk to the pregnancy This policy is iUcral unless the employer can demonstrate that being male or a non-pregnant female is a bona fide occupational qualification (BFOQ) In other words the employer would have to show that sex or pregnancy actually interferes with the employees abiltty to do the job The BFOQ defense is a very narrow exception to Title VII which employers can rarely establish
Examples of Disparate Treatment In Systemic Harassment- Sex
bull On a daily basis the male managers of a company made degrading comments to the fem ale employees abOut their bodies asked them questions abOut their ex lives and requested that they in sexual activiues Some female employees about the xual conduct to the human resources department but the conduct continued The managers claim that they were just joking The evidence indJcates that women as a class were subjected to a hostile working environment and that the is liab e for sexual harassment in iolation ofTitle
bull
May 9 20 1 4
1 8
Disparate Impact Cases
procedure policy practice disproportionate
impact
i
employenmplemented physical excludes pplicants
employment have
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull -where an employer has a neutral selection or
that has a adverse on people in a protected group such as a written test that disproportionately excludes all or a particular type of disabled employeesbull
bull
Both Theories May Apply
bull Some c1ses ra se both dispartte trearment and disparate imp1ct issues
bull For exmple if an invesnguion reveals that m a agliry test th1t
disabled job and the test may have been adopted for discriminatory reasons the case could be analyzed under both the wsparote treatment and disparte impact theories
bull Under either theory plaintiffs in discrimination cases mcludin EEOC the burden of proving that discrunination occurred
REMEDIES
bull Disparate Treatment Cases
bull Backpay
bull Reinstatement Instatement or Front Pay
bull Compensatory Damages
bull Punitive Damages
bull Non-Monetary (Afflmlltive Relief)
bull Attorneys Fees and Cost
May 9t 20 1 4
19
Services
University Texas Medical Centerv
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REMEDIES
Disparate Impact Cases
bull Backpay
bull Reinstatement ln tatement or Front Pay
bull Non-Ivlonetaty (Aff=tive Relict)
bull Attorneys Fees and Cost
Word of Caution
Special Issues of proof in ADA and Title VII
Retaliation Claims
Challenges to Standard of Proof
bull Shift in lliCed llotive cases to but for standard of proof
bull Gross v FBL Financial 557 US 167 (2009)-But For in ADEA and Title VII Retaliation
bull of SW 133 S Ct 2517 (2013)-Reaffuming
Groubut for standard in Title VII Rettliation cases
May 9 20 1 4
20
Palmqmst v Shinselo
Srwatka v Rockwel Auromatjon Inc
lewts v Humbolt Accwisition Corv
Pinkerton y Spelm s
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOS IUM
bull Other Coutts extendmg this to ADA cases -bull 8 F3 66 I Ctr 2012) bull
But For in ADA cases implied by chain analysis as follows
- ltehabiLtation Act borrows causation standard from ADA
middot ADA because standard bears a strilung rr mblancc to the ADEA because orbull standard
bull ADEA has been determined by Grou to be a but for standard
bull 591 Fld 57 (7ch Cir 2010)-7 Cir held But For causation standard is rrquircd in ADA cSCs
bull 681 Fld 312 (6ch Cir 202)-6Cir Also applies But For in ADA cases
bull Fifth Circuit - 521 Fld 513 (Sbullbull Cir 2008)-Mixed mauve in 501 cases which incorporues ADA standards But nm to ction 504 ca s whtch requires disabiJty as the sole rrason for adve action
bullADA
bullGINA
bullPDA
bullFMLA
bullWC
Todays Focus
May 9 20 1 4
21
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull ADA bull Equal Employment Opportunity Commission (EEOC)
bull FMLA- Department of Labor (Wage amp Hour Di1ston
bull Wo rken Compensation- Stlte Workers Compensation Commissions
Purpose of the ADA FMLA and Workers Compensation Laws
bull The ADA as mended pmhbits discrimmation llinsc applicants and employees who are dosabled regtrded as disabled or haC a record of doubdny
bull The FM lA sets minimum lcac standards for employees for the binh and n bom can of a chtld placement of bull child for adoption or rosier carr to carr rar m lmmediale funily member th a J(tious health condition and for the employees serious health condo ton
bull Worlun1 Compcnsacion laAS pmide for payment of compensation md rthabilitation for wotkplace in1uries and monom1ze employer habihty
ADA and GINA
May 9 20 1 4
22
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
TWIN STATUTES
ADA Here and Now
ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability- Conditions that exist now
GINA LOOKING DOWN THE ROAD
bull based on genetic information and not on the basis of a manifested condition - Potential Conditions
23
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
RECAP ADA Overview
The Americans with
Disabilities Act
Amendments Act of 2008
(ADAAA) EEOCs Final Regulations
ADA Definition of Disability
Basic 3-part definition remains the same
bull A physical or mental impairment that substantially limits a major life activity
bull Arecord of such an impairment
bull Being regarded as having such an impairment
However Congress changed the meanings of lcey terms used In these definitions
24
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Major Life Activities
bull Statute and EEOC regulations provide two non-exhaustive lists of major life activities
bull First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts
List of major life activities is not exhaustive
bull liftingbullcaring for oneself bullbendingbull performing bull speakingbull manual tasks bullbreathingbullseeing bulllearningbull hearing bull readingbull eating bullconcentratlngbull sleeping bullthinkingbullwalking bull communicatingbullstanding bullInteracting with bullsitting bull othersbullreaching bulland working
Major Life Activities Include Major Bodily Functions
bull New category of major life activities
bull Will make it easier for individuals with many different types of impairments to establish disability
25
would
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Major Bodily Functions
bull Functions of the immune system special sense organs and skin normal cell growth digestive genitourinary bowel bladder neurological brain respiratory circulatory cardiovascular endocrine hemic lymphatic musculoskeletal reproductive
bull Operations of an individual organ within a body system such as the operation of kidney liver or pancreas
Impairments That Are Episodic or In Remission
bull Remission Vill be prong one of disabilities ifi substantially limits a major life activity
WHEN ACTIVE bull Cancer is an example of impairment that may be in
remission
bull The Employer may balance the field during the reasonable accommodation analysis
Impairments That Are Episodic or In Remission
bull Episodic Impairments that ma) not affect a person 247 but which periodically flare up
bull eg epilepsy hypertension asthma diabetes major depressive disorder bipolar disorder schizophrenia
May 9 201 4
26
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
engtge complained
company VII
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Examples of Disparate Treatment in Employment Decisions
bull notations on employment application$ indicating the suspected inability based upon a perceived disability of the applicant
bull a retail store regional managers statement that hiring people with disabilities as greeters would depress customers
bull A hiring managers instructions to not hire anyone with limited mobility for sales positions
Examples of Disparate Treatment In Discriminatory Rule or Policy
bull An employer has a policy prohibiting pregnant women from working in jobs that the employer believes might pose a risk to the pregnancy This policy is iUcral unless the employer can demonstrate that being male or a non-pregnant female is a bona fide occupational qualification (BFOQ) In other words the employer would have to show that sex or pregnancy actually interferes with the employees abiltty to do the job The BFOQ defense is a very narrow exception to Title VII which employers can rarely establish
Examples of Disparate Treatment In Systemic Harassment- Sex
bull On a daily basis the male managers of a company made degrading comments to the fem ale employees abOut their bodies asked them questions abOut their ex lives and requested that they in sexual activiues Some female employees about the xual conduct to the human resources department but the conduct continued The managers claim that they were just joking The evidence indJcates that women as a class were subjected to a hostile working environment and that the is liab e for sexual harassment in iolation ofTitle
bull
May 9 20 1 4
1 8
Disparate Impact Cases
procedure policy practice disproportionate
impact
i
employenmplemented physical excludes pplicants
employment have
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull -where an employer has a neutral selection or
that has a adverse on people in a protected group such as a written test that disproportionately excludes all or a particular type of disabled employeesbull
bull
Both Theories May Apply
bull Some c1ses ra se both dispartte trearment and disparate imp1ct issues
bull For exmple if an invesnguion reveals that m a agliry test th1t
disabled job and the test may have been adopted for discriminatory reasons the case could be analyzed under both the wsparote treatment and disparte impact theories
bull Under either theory plaintiffs in discrimination cases mcludin EEOC the burden of proving that discrunination occurred
REMEDIES
bull Disparate Treatment Cases
bull Backpay
bull Reinstatement Instatement or Front Pay
bull Compensatory Damages
bull Punitive Damages
bull Non-Monetary (Afflmlltive Relief)
bull Attorneys Fees and Cost
May 9t 20 1 4
19
Services
University Texas Medical Centerv
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REMEDIES
Disparate Impact Cases
bull Backpay
bull Reinstatement ln tatement or Front Pay
bull Non-Ivlonetaty (Aff=tive Relict)
bull Attorneys Fees and Cost
Word of Caution
Special Issues of proof in ADA and Title VII
Retaliation Claims
Challenges to Standard of Proof
bull Shift in lliCed llotive cases to but for standard of proof
bull Gross v FBL Financial 557 US 167 (2009)-But For in ADEA and Title VII Retaliation
bull of SW 133 S Ct 2517 (2013)-Reaffuming
Groubut for standard in Title VII Rettliation cases
May 9 20 1 4
20
Palmqmst v Shinselo
Srwatka v Rockwel Auromatjon Inc
lewts v Humbolt Accwisition Corv
Pinkerton y Spelm s
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOS IUM
bull Other Coutts extendmg this to ADA cases -bull 8 F3 66 I Ctr 2012) bull
But For in ADA cases implied by chain analysis as follows
- ltehabiLtation Act borrows causation standard from ADA
middot ADA because standard bears a strilung rr mblancc to the ADEA because orbull standard
bull ADEA has been determined by Grou to be a but for standard
bull 591 Fld 57 (7ch Cir 2010)-7 Cir held But For causation standard is rrquircd in ADA cSCs
bull 681 Fld 312 (6ch Cir 202)-6Cir Also applies But For in ADA cases
bull Fifth Circuit - 521 Fld 513 (Sbullbull Cir 2008)-Mixed mauve in 501 cases which incorporues ADA standards But nm to ction 504 ca s whtch requires disabiJty as the sole rrason for adve action
bullADA
bullGINA
bullPDA
bullFMLA
bullWC
Todays Focus
May 9 20 1 4
21
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull ADA bull Equal Employment Opportunity Commission (EEOC)
bull FMLA- Department of Labor (Wage amp Hour Di1ston
bull Wo rken Compensation- Stlte Workers Compensation Commissions
Purpose of the ADA FMLA and Workers Compensation Laws
bull The ADA as mended pmhbits discrimmation llinsc applicants and employees who are dosabled regtrded as disabled or haC a record of doubdny
bull The FM lA sets minimum lcac standards for employees for the binh and n bom can of a chtld placement of bull child for adoption or rosier carr to carr rar m lmmediale funily member th a J(tious health condition and for the employees serious health condo ton
bull Worlun1 Compcnsacion laAS pmide for payment of compensation md rthabilitation for wotkplace in1uries and monom1ze employer habihty
ADA and GINA
May 9 20 1 4
22
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
TWIN STATUTES
ADA Here and Now
ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability- Conditions that exist now
GINA LOOKING DOWN THE ROAD
bull based on genetic information and not on the basis of a manifested condition - Potential Conditions
23
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
RECAP ADA Overview
The Americans with
Disabilities Act
Amendments Act of 2008
(ADAAA) EEOCs Final Regulations
ADA Definition of Disability
Basic 3-part definition remains the same
bull A physical or mental impairment that substantially limits a major life activity
bull Arecord of such an impairment
bull Being regarded as having such an impairment
However Congress changed the meanings of lcey terms used In these definitions
24
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Major Life Activities
bull Statute and EEOC regulations provide two non-exhaustive lists of major life activities
bull First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts
List of major life activities is not exhaustive
bull liftingbullcaring for oneself bullbendingbull performing bull speakingbull manual tasks bullbreathingbullseeing bulllearningbull hearing bull readingbull eating bullconcentratlngbull sleeping bullthinkingbullwalking bull communicatingbullstanding bullInteracting with bullsitting bull othersbullreaching bulland working
Major Life Activities Include Major Bodily Functions
bull New category of major life activities
bull Will make it easier for individuals with many different types of impairments to establish disability
25
would
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Major Bodily Functions
bull Functions of the immune system special sense organs and skin normal cell growth digestive genitourinary bowel bladder neurological brain respiratory circulatory cardiovascular endocrine hemic lymphatic musculoskeletal reproductive
bull Operations of an individual organ within a body system such as the operation of kidney liver or pancreas
Impairments That Are Episodic or In Remission
bull Remission Vill be prong one of disabilities ifi substantially limits a major life activity
WHEN ACTIVE bull Cancer is an example of impairment that may be in
remission
bull The Employer may balance the field during the reasonable accommodation analysis
Impairments That Are Episodic or In Remission
bull Episodic Impairments that ma) not affect a person 247 but which periodically flare up
bull eg epilepsy hypertension asthma diabetes major depressive disorder bipolar disorder schizophrenia
May 9 201 4
26
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
Disparate Impact Cases
procedure policy practice disproportionate
impact
i
employenmplemented physical excludes pplicants
employment have
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull -where an employer has a neutral selection or
that has a adverse on people in a protected group such as a written test that disproportionately excludes all or a particular type of disabled employeesbull
bull
Both Theories May Apply
bull Some c1ses ra se both dispartte trearment and disparate imp1ct issues
bull For exmple if an invesnguion reveals that m a agliry test th1t
disabled job and the test may have been adopted for discriminatory reasons the case could be analyzed under both the wsparote treatment and disparte impact theories
bull Under either theory plaintiffs in discrimination cases mcludin EEOC the burden of proving that discrunination occurred
REMEDIES
bull Disparate Treatment Cases
bull Backpay
bull Reinstatement Instatement or Front Pay
bull Compensatory Damages
bull Punitive Damages
bull Non-Monetary (Afflmlltive Relief)
bull Attorneys Fees and Cost
May 9t 20 1 4
19
Services
University Texas Medical Centerv
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REMEDIES
Disparate Impact Cases
bull Backpay
bull Reinstatement ln tatement or Front Pay
bull Non-Ivlonetaty (Aff=tive Relict)
bull Attorneys Fees and Cost
Word of Caution
Special Issues of proof in ADA and Title VII
Retaliation Claims
Challenges to Standard of Proof
bull Shift in lliCed llotive cases to but for standard of proof
bull Gross v FBL Financial 557 US 167 (2009)-But For in ADEA and Title VII Retaliation
bull of SW 133 S Ct 2517 (2013)-Reaffuming
Groubut for standard in Title VII Rettliation cases
May 9 20 1 4
20
Palmqmst v Shinselo
Srwatka v Rockwel Auromatjon Inc
lewts v Humbolt Accwisition Corv
Pinkerton y Spelm s
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOS IUM
bull Other Coutts extendmg this to ADA cases -bull 8 F3 66 I Ctr 2012) bull
But For in ADA cases implied by chain analysis as follows
- ltehabiLtation Act borrows causation standard from ADA
middot ADA because standard bears a strilung rr mblancc to the ADEA because orbull standard
bull ADEA has been determined by Grou to be a but for standard
bull 591 Fld 57 (7ch Cir 2010)-7 Cir held But For causation standard is rrquircd in ADA cSCs
bull 681 Fld 312 (6ch Cir 202)-6Cir Also applies But For in ADA cases
bull Fifth Circuit - 521 Fld 513 (Sbullbull Cir 2008)-Mixed mauve in 501 cases which incorporues ADA standards But nm to ction 504 ca s whtch requires disabiJty as the sole rrason for adve action
bullADA
bullGINA
bullPDA
bullFMLA
bullWC
Todays Focus
May 9 20 1 4
21
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull ADA bull Equal Employment Opportunity Commission (EEOC)
bull FMLA- Department of Labor (Wage amp Hour Di1ston
bull Wo rken Compensation- Stlte Workers Compensation Commissions
Purpose of the ADA FMLA and Workers Compensation Laws
bull The ADA as mended pmhbits discrimmation llinsc applicants and employees who are dosabled regtrded as disabled or haC a record of doubdny
bull The FM lA sets minimum lcac standards for employees for the binh and n bom can of a chtld placement of bull child for adoption or rosier carr to carr rar m lmmediale funily member th a J(tious health condition and for the employees serious health condo ton
bull Worlun1 Compcnsacion laAS pmide for payment of compensation md rthabilitation for wotkplace in1uries and monom1ze employer habihty
ADA and GINA
May 9 20 1 4
22
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
TWIN STATUTES
ADA Here and Now
ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability- Conditions that exist now
GINA LOOKING DOWN THE ROAD
bull based on genetic information and not on the basis of a manifested condition - Potential Conditions
23
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
RECAP ADA Overview
The Americans with
Disabilities Act
Amendments Act of 2008
(ADAAA) EEOCs Final Regulations
ADA Definition of Disability
Basic 3-part definition remains the same
bull A physical or mental impairment that substantially limits a major life activity
bull Arecord of such an impairment
bull Being regarded as having such an impairment
However Congress changed the meanings of lcey terms used In these definitions
24
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Major Life Activities
bull Statute and EEOC regulations provide two non-exhaustive lists of major life activities
bull First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts
List of major life activities is not exhaustive
bull liftingbullcaring for oneself bullbendingbull performing bull speakingbull manual tasks bullbreathingbullseeing bulllearningbull hearing bull readingbull eating bullconcentratlngbull sleeping bullthinkingbullwalking bull communicatingbullstanding bullInteracting with bullsitting bull othersbullreaching bulland working
Major Life Activities Include Major Bodily Functions
bull New category of major life activities
bull Will make it easier for individuals with many different types of impairments to establish disability
25
would
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Major Bodily Functions
bull Functions of the immune system special sense organs and skin normal cell growth digestive genitourinary bowel bladder neurological brain respiratory circulatory cardiovascular endocrine hemic lymphatic musculoskeletal reproductive
bull Operations of an individual organ within a body system such as the operation of kidney liver or pancreas
Impairments That Are Episodic or In Remission
bull Remission Vill be prong one of disabilities ifi substantially limits a major life activity
WHEN ACTIVE bull Cancer is an example of impairment that may be in
remission
bull The Employer may balance the field during the reasonable accommodation analysis
Impairments That Are Episodic or In Remission
bull Episodic Impairments that ma) not affect a person 247 but which periodically flare up
bull eg epilepsy hypertension asthma diabetes major depressive disorder bipolar disorder schizophrenia
May 9 201 4
26
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
Services
University Texas Medical Centerv
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REMEDIES
Disparate Impact Cases
bull Backpay
bull Reinstatement ln tatement or Front Pay
bull Non-Ivlonetaty (Aff=tive Relict)
bull Attorneys Fees and Cost
Word of Caution
Special Issues of proof in ADA and Title VII
Retaliation Claims
Challenges to Standard of Proof
bull Shift in lliCed llotive cases to but for standard of proof
bull Gross v FBL Financial 557 US 167 (2009)-But For in ADEA and Title VII Retaliation
bull of SW 133 S Ct 2517 (2013)-Reaffuming
Groubut for standard in Title VII Rettliation cases
May 9 20 1 4
20
Palmqmst v Shinselo
Srwatka v Rockwel Auromatjon Inc
lewts v Humbolt Accwisition Corv
Pinkerton y Spelm s
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOS IUM
bull Other Coutts extendmg this to ADA cases -bull 8 F3 66 I Ctr 2012) bull
But For in ADA cases implied by chain analysis as follows
- ltehabiLtation Act borrows causation standard from ADA
middot ADA because standard bears a strilung rr mblancc to the ADEA because orbull standard
bull ADEA has been determined by Grou to be a but for standard
bull 591 Fld 57 (7ch Cir 2010)-7 Cir held But For causation standard is rrquircd in ADA cSCs
bull 681 Fld 312 (6ch Cir 202)-6Cir Also applies But For in ADA cases
bull Fifth Circuit - 521 Fld 513 (Sbullbull Cir 2008)-Mixed mauve in 501 cases which incorporues ADA standards But nm to ction 504 ca s whtch requires disabiJty as the sole rrason for adve action
bullADA
bullGINA
bullPDA
bullFMLA
bullWC
Todays Focus
May 9 20 1 4
21
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull ADA bull Equal Employment Opportunity Commission (EEOC)
bull FMLA- Department of Labor (Wage amp Hour Di1ston
bull Wo rken Compensation- Stlte Workers Compensation Commissions
Purpose of the ADA FMLA and Workers Compensation Laws
bull The ADA as mended pmhbits discrimmation llinsc applicants and employees who are dosabled regtrded as disabled or haC a record of doubdny
bull The FM lA sets minimum lcac standards for employees for the binh and n bom can of a chtld placement of bull child for adoption or rosier carr to carr rar m lmmediale funily member th a J(tious health condition and for the employees serious health condo ton
bull Worlun1 Compcnsacion laAS pmide for payment of compensation md rthabilitation for wotkplace in1uries and monom1ze employer habihty
ADA and GINA
May 9 20 1 4
22
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
TWIN STATUTES
ADA Here and Now
ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability- Conditions that exist now
GINA LOOKING DOWN THE ROAD
bull based on genetic information and not on the basis of a manifested condition - Potential Conditions
23
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
RECAP ADA Overview
The Americans with
Disabilities Act
Amendments Act of 2008
(ADAAA) EEOCs Final Regulations
ADA Definition of Disability
Basic 3-part definition remains the same
bull A physical or mental impairment that substantially limits a major life activity
bull Arecord of such an impairment
bull Being regarded as having such an impairment
However Congress changed the meanings of lcey terms used In these definitions
24
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Major Life Activities
bull Statute and EEOC regulations provide two non-exhaustive lists of major life activities
bull First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts
List of major life activities is not exhaustive
bull liftingbullcaring for oneself bullbendingbull performing bull speakingbull manual tasks bullbreathingbullseeing bulllearningbull hearing bull readingbull eating bullconcentratlngbull sleeping bullthinkingbullwalking bull communicatingbullstanding bullInteracting with bullsitting bull othersbullreaching bulland working
Major Life Activities Include Major Bodily Functions
bull New category of major life activities
bull Will make it easier for individuals with many different types of impairments to establish disability
25
would
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Major Bodily Functions
bull Functions of the immune system special sense organs and skin normal cell growth digestive genitourinary bowel bladder neurological brain respiratory circulatory cardiovascular endocrine hemic lymphatic musculoskeletal reproductive
bull Operations of an individual organ within a body system such as the operation of kidney liver or pancreas
Impairments That Are Episodic or In Remission
bull Remission Vill be prong one of disabilities ifi substantially limits a major life activity
WHEN ACTIVE bull Cancer is an example of impairment that may be in
remission
bull The Employer may balance the field during the reasonable accommodation analysis
Impairments That Are Episodic or In Remission
bull Episodic Impairments that ma) not affect a person 247 but which periodically flare up
bull eg epilepsy hypertension asthma diabetes major depressive disorder bipolar disorder schizophrenia
May 9 201 4
26
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
Palmqmst v Shinselo
Srwatka v Rockwel Auromatjon Inc
lewts v Humbolt Accwisition Corv
Pinkerton y Spelm s
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOS IUM
bull Other Coutts extendmg this to ADA cases -bull 8 F3 66 I Ctr 2012) bull
But For in ADA cases implied by chain analysis as follows
- ltehabiLtation Act borrows causation standard from ADA
middot ADA because standard bears a strilung rr mblancc to the ADEA because orbull standard
bull ADEA has been determined by Grou to be a but for standard
bull 591 Fld 57 (7ch Cir 2010)-7 Cir held But For causation standard is rrquircd in ADA cSCs
bull 681 Fld 312 (6ch Cir 202)-6Cir Also applies But For in ADA cases
bull Fifth Circuit - 521 Fld 513 (Sbullbull Cir 2008)-Mixed mauve in 501 cases which incorporues ADA standards But nm to ction 504 ca s whtch requires disabiJty as the sole rrason for adve action
bullADA
bullGINA
bullPDA
bullFMLA
bullWC
Todays Focus
May 9 20 1 4
21
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull ADA bull Equal Employment Opportunity Commission (EEOC)
bull FMLA- Department of Labor (Wage amp Hour Di1ston
bull Wo rken Compensation- Stlte Workers Compensation Commissions
Purpose of the ADA FMLA and Workers Compensation Laws
bull The ADA as mended pmhbits discrimmation llinsc applicants and employees who are dosabled regtrded as disabled or haC a record of doubdny
bull The FM lA sets minimum lcac standards for employees for the binh and n bom can of a chtld placement of bull child for adoption or rosier carr to carr rar m lmmediale funily member th a J(tious health condition and for the employees serious health condo ton
bull Worlun1 Compcnsacion laAS pmide for payment of compensation md rthabilitation for wotkplace in1uries and monom1ze employer habihty
ADA and GINA
May 9 20 1 4
22
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
TWIN STATUTES
ADA Here and Now
ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability- Conditions that exist now
GINA LOOKING DOWN THE ROAD
bull based on genetic information and not on the basis of a manifested condition - Potential Conditions
23
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
RECAP ADA Overview
The Americans with
Disabilities Act
Amendments Act of 2008
(ADAAA) EEOCs Final Regulations
ADA Definition of Disability
Basic 3-part definition remains the same
bull A physical or mental impairment that substantially limits a major life activity
bull Arecord of such an impairment
bull Being regarded as having such an impairment
However Congress changed the meanings of lcey terms used In these definitions
24
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Major Life Activities
bull Statute and EEOC regulations provide two non-exhaustive lists of major life activities
bull First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts
List of major life activities is not exhaustive
bull liftingbullcaring for oneself bullbendingbull performing bull speakingbull manual tasks bullbreathingbullseeing bulllearningbull hearing bull readingbull eating bullconcentratlngbull sleeping bullthinkingbullwalking bull communicatingbullstanding bullInteracting with bullsitting bull othersbullreaching bulland working
Major Life Activities Include Major Bodily Functions
bull New category of major life activities
bull Will make it easier for individuals with many different types of impairments to establish disability
25
would
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Major Bodily Functions
bull Functions of the immune system special sense organs and skin normal cell growth digestive genitourinary bowel bladder neurological brain respiratory circulatory cardiovascular endocrine hemic lymphatic musculoskeletal reproductive
bull Operations of an individual organ within a body system such as the operation of kidney liver or pancreas
Impairments That Are Episodic or In Remission
bull Remission Vill be prong one of disabilities ifi substantially limits a major life activity
WHEN ACTIVE bull Cancer is an example of impairment that may be in
remission
bull The Employer may balance the field during the reasonable accommodation analysis
Impairments That Are Episodic or In Remission
bull Episodic Impairments that ma) not affect a person 247 but which periodically flare up
bull eg epilepsy hypertension asthma diabetes major depressive disorder bipolar disorder schizophrenia
May 9 201 4
26
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
bull ADA bull Equal Employment Opportunity Commission (EEOC)
bull FMLA- Department of Labor (Wage amp Hour Di1ston
bull Wo rken Compensation- Stlte Workers Compensation Commissions
Purpose of the ADA FMLA and Workers Compensation Laws
bull The ADA as mended pmhbits discrimmation llinsc applicants and employees who are dosabled regtrded as disabled or haC a record of doubdny
bull The FM lA sets minimum lcac standards for employees for the binh and n bom can of a chtld placement of bull child for adoption or rosier carr to carr rar m lmmediale funily member th a J(tious health condition and for the employees serious health condo ton
bull Worlun1 Compcnsacion laAS pmide for payment of compensation md rthabilitation for wotkplace in1uries and monom1ze employer habihty
ADA and GINA
May 9 20 1 4
22
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
TWIN STATUTES
ADA Here and Now
ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability- Conditions that exist now
GINA LOOKING DOWN THE ROAD
bull based on genetic information and not on the basis of a manifested condition - Potential Conditions
23
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
RECAP ADA Overview
The Americans with
Disabilities Act
Amendments Act of 2008
(ADAAA) EEOCs Final Regulations
ADA Definition of Disability
Basic 3-part definition remains the same
bull A physical or mental impairment that substantially limits a major life activity
bull Arecord of such an impairment
bull Being regarded as having such an impairment
However Congress changed the meanings of lcey terms used In these definitions
24
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Major Life Activities
bull Statute and EEOC regulations provide two non-exhaustive lists of major life activities
bull First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts
List of major life activities is not exhaustive
bull liftingbullcaring for oneself bullbendingbull performing bull speakingbull manual tasks bullbreathingbullseeing bulllearningbull hearing bull readingbull eating bullconcentratlngbull sleeping bullthinkingbullwalking bull communicatingbullstanding bullInteracting with bullsitting bull othersbullreaching bulland working
Major Life Activities Include Major Bodily Functions
bull New category of major life activities
bull Will make it easier for individuals with many different types of impairments to establish disability
25
would
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Major Bodily Functions
bull Functions of the immune system special sense organs and skin normal cell growth digestive genitourinary bowel bladder neurological brain respiratory circulatory cardiovascular endocrine hemic lymphatic musculoskeletal reproductive
bull Operations of an individual organ within a body system such as the operation of kidney liver or pancreas
Impairments That Are Episodic or In Remission
bull Remission Vill be prong one of disabilities ifi substantially limits a major life activity
WHEN ACTIVE bull Cancer is an example of impairment that may be in
remission
bull The Employer may balance the field during the reasonable accommodation analysis
Impairments That Are Episodic or In Remission
bull Episodic Impairments that ma) not affect a person 247 but which periodically flare up
bull eg epilepsy hypertension asthma diabetes major depressive disorder bipolar disorder schizophrenia
May 9 201 4
26
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
TWIN STATUTES
ADA Here and Now
ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability- Conditions that exist now
GINA LOOKING DOWN THE ROAD
bull based on genetic information and not on the basis of a manifested condition - Potential Conditions
23
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
RECAP ADA Overview
The Americans with
Disabilities Act
Amendments Act of 2008
(ADAAA) EEOCs Final Regulations
ADA Definition of Disability
Basic 3-part definition remains the same
bull A physical or mental impairment that substantially limits a major life activity
bull Arecord of such an impairment
bull Being regarded as having such an impairment
However Congress changed the meanings of lcey terms used In these definitions
24
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Major Life Activities
bull Statute and EEOC regulations provide two non-exhaustive lists of major life activities
bull First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts
List of major life activities is not exhaustive
bull liftingbullcaring for oneself bullbendingbull performing bull speakingbull manual tasks bullbreathingbullseeing bulllearningbull hearing bull readingbull eating bullconcentratlngbull sleeping bullthinkingbullwalking bull communicatingbullstanding bullInteracting with bullsitting bull othersbullreaching bulland working
Major Life Activities Include Major Bodily Functions
bull New category of major life activities
bull Will make it easier for individuals with many different types of impairments to establish disability
25
would
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Major Bodily Functions
bull Functions of the immune system special sense organs and skin normal cell growth digestive genitourinary bowel bladder neurological brain respiratory circulatory cardiovascular endocrine hemic lymphatic musculoskeletal reproductive
bull Operations of an individual organ within a body system such as the operation of kidney liver or pancreas
Impairments That Are Episodic or In Remission
bull Remission Vill be prong one of disabilities ifi substantially limits a major life activity
WHEN ACTIVE bull Cancer is an example of impairment that may be in
remission
bull The Employer may balance the field during the reasonable accommodation analysis
Impairments That Are Episodic or In Remission
bull Episodic Impairments that ma) not affect a person 247 but which periodically flare up
bull eg epilepsy hypertension asthma diabetes major depressive disorder bipolar disorder schizophrenia
May 9 201 4
26
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
RECAP ADA Overview
The Americans with
Disabilities Act
Amendments Act of 2008
(ADAAA) EEOCs Final Regulations
ADA Definition of Disability
Basic 3-part definition remains the same
bull A physical or mental impairment that substantially limits a major life activity
bull Arecord of such an impairment
bull Being regarded as having such an impairment
However Congress changed the meanings of lcey terms used In these definitions
24
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Major Life Activities
bull Statute and EEOC regulations provide two non-exhaustive lists of major life activities
bull First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts
List of major life activities is not exhaustive
bull liftingbullcaring for oneself bullbendingbull performing bull speakingbull manual tasks bullbreathingbullseeing bulllearningbull hearing bull readingbull eating bullconcentratlngbull sleeping bullthinkingbullwalking bull communicatingbullstanding bullInteracting with bullsitting bull othersbullreaching bulland working
Major Life Activities Include Major Bodily Functions
bull New category of major life activities
bull Will make it easier for individuals with many different types of impairments to establish disability
25
would
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Major Bodily Functions
bull Functions of the immune system special sense organs and skin normal cell growth digestive genitourinary bowel bladder neurological brain respiratory circulatory cardiovascular endocrine hemic lymphatic musculoskeletal reproductive
bull Operations of an individual organ within a body system such as the operation of kidney liver or pancreas
Impairments That Are Episodic or In Remission
bull Remission Vill be prong one of disabilities ifi substantially limits a major life activity
WHEN ACTIVE bull Cancer is an example of impairment that may be in
remission
bull The Employer may balance the field during the reasonable accommodation analysis
Impairments That Are Episodic or In Remission
bull Episodic Impairments that ma) not affect a person 247 but which periodically flare up
bull eg epilepsy hypertension asthma diabetes major depressive disorder bipolar disorder schizophrenia
May 9 201 4
26
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Major Life Activities
bull Statute and EEOC regulations provide two non-exhaustive lists of major life activities
bull First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts
List of major life activities is not exhaustive
bull liftingbullcaring for oneself bullbendingbull performing bull speakingbull manual tasks bullbreathingbullseeing bulllearningbull hearing bull readingbull eating bullconcentratlngbull sleeping bullthinkingbullwalking bull communicatingbullstanding bullInteracting with bullsitting bull othersbullreaching bulland working
Major Life Activities Include Major Bodily Functions
bull New category of major life activities
bull Will make it easier for individuals with many different types of impairments to establish disability
25
would
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Major Bodily Functions
bull Functions of the immune system special sense organs and skin normal cell growth digestive genitourinary bowel bladder neurological brain respiratory circulatory cardiovascular endocrine hemic lymphatic musculoskeletal reproductive
bull Operations of an individual organ within a body system such as the operation of kidney liver or pancreas
Impairments That Are Episodic or In Remission
bull Remission Vill be prong one of disabilities ifi substantially limits a major life activity
WHEN ACTIVE bull Cancer is an example of impairment that may be in
remission
bull The Employer may balance the field during the reasonable accommodation analysis
Impairments That Are Episodic or In Remission
bull Episodic Impairments that ma) not affect a person 247 but which periodically flare up
bull eg epilepsy hypertension asthma diabetes major depressive disorder bipolar disorder schizophrenia
May 9 201 4
26
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
would
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Major Bodily Functions
bull Functions of the immune system special sense organs and skin normal cell growth digestive genitourinary bowel bladder neurological brain respiratory circulatory cardiovascular endocrine hemic lymphatic musculoskeletal reproductive
bull Operations of an individual organ within a body system such as the operation of kidney liver or pancreas
Impairments That Are Episodic or In Remission
bull Remission Vill be prong one of disabilities ifi substantially limits a major life activity
WHEN ACTIVE bull Cancer is an example of impairment that may be in
remission
bull The Employer may balance the field during the reasonable accommodation analysis
Impairments That Are Episodic or In Remission
bull Episodic Impairments that ma) not affect a person 247 but which periodically flare up
bull eg epilepsy hypertension asthma diabetes major depressive disorder bipolar disorder schizophrenia
May 9 201 4
26
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
substantially
complUYd people gcneral population
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Substantially Limited Redefined
bull An impairment need NOT prevent or significantly or severely restrict performance of a major life activity to be limiting
bull To have a disability (or to have a record of a disability) an individual must be substantially limited in perfonning a major life activity M
to most in the
a comrnonmiddotsense assessment
ADA Title I - Employment
bull It Is illegal to discriminate against a qualified individual with a disability because of the disability of such Individual in regard to job application procedures the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment
ADA Title I - Employment
bull Meaning Employers may not discriminate against a person with a disability in any area of employment
as long as the Individual has the experience training or skill to perform the essential features of the job with or without some accommodation
May 9 20 1 4
27
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ADA Title I - Limitations
bull Does not apply to businesses with fewer than 15 employees
bull Employer required to provide a reasonable accommodation unless doing so is an undue hardship on the employer
bull Undue Hardship is defined as an accommodation that Is exceptionally expensive disruptive or would change the operation and nature of the business
ADA Title I - Limitations
bull If the disabled individual poses a Direct Threat to any Individual in the workplace then Title I does not apply
bull Direct threat can be to self
Essential Job Functions
bull Defined as a part of the job that is most important and not secondary
bull (eg driving a truck to make deliveries v cleaning out the back of the truck)
bull Task performed frequently on which a substantial amount of time is spent and significant ramifications result if the task Is not completed
28
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation
bull Defined by the ADA as modification or adjustment of the way things are customarily done leading to equal opportunity access andor participation
bull eg changes in schedules Increased communication or changes In the physical environment
Danger Direct Threat andtheADA
bull Direct Threat means a substantial risk to the safety of others or the individual that an accommodation cannot eliminate
bull Threat must be real and immediate not based upon prejudice or preconceived ideas
bull If a Direct Threat is posed the Individual may be denied accommodation and asked to leave the premises and not retum
bull eg a Paranoid Personality making threats to co-workers
Psychiatric Assessment of a Direct Threat
bull Duration of the risk
bull Severity of potential harm
bull Imminence of potential harm
bull Past history of suicide is not enough to qualify
bull Perception by others that a person is dangerous is not enough to qualify
29
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOS IUM
Nature of the Threat
bull Individual needs to display recent violent behaviors or have a plan to commit violence
bull Verbal or written threats alone are generally not enough to identify an Individual as a direct threat under the ADA
bull eg An employer who believes that all schizophrenics are dangerous and who does not want to hire an individual for a job because he has a history of Schizophrenia would not be supported by the ADA
How to Prepare for a Reasonable Accommodation
Request Before the Request is Made
30
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Job Descriptions
bull Preparing job descriptions is one opound the best ways to get ready Cor a reasonable accommodation request
bull A good job description will contain
bullStatement of the job type
bullList of essential and non-essential functions
bullList of production standards required and
bullThe necessary qualification standards for the job type
Job Type
Job type refers to the focus area of the position in question EG Sales Manager Administrative Assistant Anorney-Advisor etc
31
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Job Functions
bull Job unction$ refer to the tasks er duties th t n employer cxplaquots to be performedcompleted by an ndh dual on a given job type
bull When lostmg functions th employer should concntnte on needbull to h ppcn as oppoocd to it usually happens
bull Ex a delivery penon needs to load and offioad parcels she docs not neceuarily need to loft parceJ (note this m y not be the only euential functionf
bull Ex a manuscript reviewer needbull to review 0 manuscripts in bull middotark-week not ncceunly 20 manuscripts ber--cen am and 5 pm Monday through Friday
Essential Functions
bull Must st essential and non-essential functions bull Essential functions- the tasks necessary for the job
to be completed bull Non-esscnual functions- all other task$ associated
with the job
bull For many employers all job functions may seem essentoal particularly tf the function have ahoays been part of a JOb
bull But the ADA is a slop lhlnk and justify law Figuring out the essential and nonmiddotesscntial funcJons is the ftrSt Jtcp on that effort
bull The reasoned judgment of the employer is key
Attendance as an Essential Function
Can artendancc be an essential function of a job
-Current EEOC policy is that attendanc bullbull not an eltntial functoon as defined by the ADA because it is not one of the fundamental job dutoes of the employment positoon bull 29 CF R sect 1 6302(n)(1) 9002 RA Guodoncc fn 65)
May 9 20 1 4
32
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Production Standards
bull Producrion Standards refer to the quantitative or qualitative perfonnancc standards that an employer bd1evcs an employee must meet in order to accomplish a job
bull A quanritbulltive production tondard mcuurcs how fltlldt an employee producu or acromplhes (Ie o monchly sales quota)
bull A qualitollve production standard meosurcs how bullbullUan employee docs hos or her job (ie a company rcquorcs that a customer service rcprcscnlative provide qualocy service os defined by the company)
Production Standards (Cont)
bull Produccion s12ndbullrds muse be opplied uniformly
bull Job descnptoons should clearly slate the employers explaquototiont for the job and such expeuorions bullhQUid be apploed conolttcntly in practice
bull An employer -ill be required to provide bull ntsonable accommodacion that docs n(lt impose an undue hanJhop in order for the employee to meet the production otandard1
Production Standards (Cont)
bull While product11m uandard cb not need to be lomiddotered productton standardbull tTUf negtcd to be pronated tf an employee rcquind leave or a reduced houro schedule as a reasonable accommodation
For example A ulcsperson 12kes five monchs of leave as a reasonable gtecommodahon As a result the salesperson falls shon of the rcqutrcd yearly ulcs quotL In caluallng the salespersons performonce the employer should pro rIIC the yearly ulc figure to accoun1 for che fact that the salesperson nusscd five months of -Ork
33
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
Qualification Standards
bull Qualification Stllndmnlo thc stondords thc cmployce ncods to mcct in ordcr to pcrfonn the usentiU job functions up to the employors productton Jtandanls These qugtltlicotiOn stand2rds can imludc
I) Phyoicml nquinmcntl (eg V15ton hc2nng -tlkmg or
lif11ng rcqutrcmcnts)
2) Uccn1c Rcquihmcntl and eligibility pnrcqui1ite1 (eg lomiddot hccnsc drivers license)
3) Gcnerml capacity hquircmcntl (eg the abtlity to monagc mony smoll dctuls)
Qualification Standards
bull If a qugtltfiution stgtndord screens out or tends to sccn out indtvtduols vith disobilitics rcgtrdlcss of the employers intention in cating thc standort it vill violotc thc ADA unlcss
the cmploycr con show that the quohfication standord bullbull job related and consistent with business necessity
What About State Licensing Requirements
bull Employer obligations depend upon
bull Timing of the requirement
bull Nature of the business
bull Structure of the business
34
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
What about High School or College Degrees
bull On November 17 2011 the EEOC issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards fo r jobs
bull Nothing prohibits emplorers fr om adopting a requirement that a job applicant have a high school diploma
bull However an employer may have to aUow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrJte qualification fo r the job in some other way
bull The ADA only protects someone whose disability makes it impossible for him or her to get a diploma It would not protect someone who simply decided not to get a high school diploma
35
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull This may include considering work experience in the same or similar jobs or allowing her to demonstrate performance of the jobs essential functions
bull The employer can require the applicant to demonstrate perhaps through appropriate docwnentation that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement
Interactive Process Road Map for the Conversation
1 Is this a reasonable request (plaustble feastble) 1n light of the type of job
2 Would this request 1mpose an undue hardship
TYPES OF REASONABLE ACCOMMODATIONS
bull Assistive devices or technology
bull Working from home
bull Readers Interpreters and personal assistants
bull Modification of work duties
bull Aexible work schedule
May 9 20 1 4
36
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 201 4 BROWARD ADA SYMPOSIUM
TYPES OF REASONABLE ACCOMMODATIONS
bull Adjustment to work office or station
bull Change in work style of management officials or co-workers
bull Leave including LWOP
bull Reassignment to vacant position
TYPES OF REASONABLE ACCOMMODATIONS
bull Making fuciliries ccessible and cquiring assistive devices
bull Modifying work schedules bull Restructuring of job bull Pennitring use of ccrued leave and unpaid leave
bull Modifying exam or training materiUs
Some Legal Rules
1 An employer is not required ro provide a reasonable accommodation if doing o ould impose an undue hardship on the employer
z The definition of undue hardship is significant bulldifficulty or expense
An employer can show that an accommodation imposes either ijllificant fmancial difficulty or significant operational difficulty
3
4 The undue hardship analrls is completely case specific
s No need to ptaide pcnonal items like glasses
37
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
LEAVE AS AN ACCOMMODATION
bull The ADA d s nor premiddotenr an employer from having a nofaulr attendance policy or a maximum leave policy
bull BUT - the ADA requires an employer to modify the noshyfault aspect of its attendance policy or extend the maximum amount of leave - if providing such modi ficarions as a reasonable accommodation would not impose an undue hardship on the employer
Recent Employment Decisions Developments in the Law and EEOC
Litigation
LEGAL UPDATEs ON JlAslrl bl ADA
moRqJ - bampS Miami District Office
August 9 2013
I Pregnancy Discrimination Title VII - Text of the PDA (42
USC 2000e(k)) bull (k The terms because of sex or on the basis
of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by prebgtnancy childbirth or related medical conditions shaD be trtated the sam e for aU employment-related purposes as other persons not so af fected but similar in their ability or inability to work
May 9 20 1 4
38
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
Mayora Alorica Inc
7-Eieven Inc
EEOC Houston Fundinr
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
PREGNANCY-RELATED IMPAIRMENTS ADA
v 2012 WL 3043021 (SD Fla July 25 2012)
bull 11= ffhad ahogh-mk pgnoncy h bbullbr n breech po11non thro t tn lnng IJt lnttr alra prtmlrure contnctions mcreufd hem ntt ICVttC momngsbullcknest bxk p11n and lowtr abdominal pam and d1rtc q room vtllts
bull Hltld Wit bull hltgtlthr pgnonaltS are no1 orvltTltd und-ADA prltgngtnltymiddot rrlakd comphcJMns nur d1uh brin 1f 1hey an sevne or long en-ough m dunaon MoHon to dtmiSt demN and pbmuff dirrcted 10 file 1mended complllnt Jlltgang spmfic m1jor hfe xt1nnes whKh were tububullunull hnuttd
PREGNANCY-RELATED IMPAIRMENT NOT SUBSTANTIALLY UMJTING UNDER ADA
Selkow v 2012 WL 2054872 (MD Fla June 7 2012)
bull Pregnant plaintiffs weakened back prevented her from doing heavy lifting from 5th month on
bull Held Condition nor substantially limiting summary judgment granted fo r employer
Pregnancy Discrimination Title VII
bull v 2013 VL 23601 14 (Sbullh
Cir 2013)
- EEOC 3ll ged mployer rerminared charging parry cause she ed to express breast milk mployer
claimed ir l rminar d her for JOb abandonment
- Remiddotersing summary judgment for cmploy r court held that bcration is a medical condition relat d to pregnancy and 1h re were 1ssu s of facr concerning employers reasons for tcrminaring Ihe charging party
- ADA Implications
May 9 2014
39
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
Scrctln)d Beverly Healthcare LLC
Young United Parcel Serv
EEOC y Hill Co untO Farmbull gc (1lbully I 013 SD lou-)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Pregnancy Discrimination Title VII
bull v 656 F3d 540 7th Cir 2011) bull Employer policy of limiting light duty to workers
injured on the job did not discriminate against pregnant employee
bull Employer treated prcflant workers the same as workers injured off the job by denying light duty to both
bull Implication for ADA
Pregnancy Discrimination
bull v 707 F3d 437 (4th Cir 2013) bull Pregnant worker th 20middotpound lifting restriction
not entitled to light duty under the PDA
bull Employers light duty policy was limited to individuals injun=d on rhe job those with disabilities and those who lost Department of Trtnsportation cerrification to drive commercial motor chicles
bull ADA Implications
II ADA
bull EEOC bulllle d thbullt Hill Country Fanns (dba Henrys Turkey Senice) subjected 32 men 1th intdlecruol di bihues to bullbuse and discrimination for 20yean
bull The OrkeD were sent from Teus to an Iowa turkey procenong plant 11middothe re they were tsobted bullbused mode to lie in substandard conditions bullnd pbullid $65 per month
bull The jury au-rded $240 Million in damaglts to the EEOC - lbullter reduced to the st2tutory c1ps
May 9 20 1 4
40
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
Kchb y CounJy g(Oakand
lgnsbull y Wabzcn Cp
KalaU y Alljant Enerex CoQoratc Scrvjlo Inc 691 FJd 925) (Sih Cir 2012)
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED - ESSENTIALJOB FUNCTIONS
2013 WL 1 1 5647 (6 Cir Jan 10 2013)
bull Summory judgment rversed on question of llihethr plainttiT who is deaf was quahfied to be a lofegubullrd
bull Employers doctor ond aquotic safety consultants mbullde no indlidualtzed osscssment to determme middothether plainttiT could perform essential functoons middothile there wos evidence from plaontipoundrbull ex penbull regrdbullng how bull deaf penon can cbullrry our hfeguard dutiltS eg detectoon of distrssed s1mmers is visubulllly based enforcement of rules 1n a nolsy environment rquirs use of whiStle bullnd gestus
ADA QUALIFIED ESSENTIAL JOB FUNCTIONS
7gt F3d 9 (I Cir by 10 2012)
bull Sto manager not entbulltled to delegte physic a dutoes of her job 10 subordinates
bull Eiscntiol functions of her job mduded doing phybullicol ttsks DICenory () to tmprove and man121n the stomiddots condmon nuintenonce ond appearance and () to implement menhondo5ong gwdelinu rgrdbullng promotional spgtee and dbullsplay tables
ADA QUALIFIED ESSENTIALJOB FUNCTIONS
bull PI ainu ITsought and wu denoed a strtght doy 5htft 21 an occommod2toon for her d12betes
bull Summory judgment for employer bullffirmed Rotating schedule listed u bull rquircmcnt on job description ond it sprad undesirable shifts omong bullII rsource coordbullnbullton
bull A1middotoiding employee complunts and mbullintuning morole bulllaquo legitimate bubulliness laquogtSons for a scheduling decosion
May 9 20 1 4
41
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
Samper Medical
City of York
State Bank
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
ADA QUALIFIED ATTENDANCE
v Providence St Vincent Center 675 F3d 1233 (9h Cir 2012)
bull Neo-not)I ICU NICU) nunc nquested accommodoti m of unspocoficd number of unplanned obsences
bull Held Pndictablc onbullsote ottendonce is an ebullsento)l funcuon of NICU nurses job Job requires oeamwork face-to-face interaction 11h pgttients and orkong ith onsotc medkal equipment Because of spocoalozed NICU tnoning NICV nurses ond gcnerol nursong stoff ore not fungible
bull Denial of occommodgttoon nqucst upheld
ADA QUALIFIED - ATTENDANCE
McMillan v New _F3d 2013 WL 779742 (2d Cr Morch 4 2013)
Defend ant tllod case nunofgtcr ith morning drowsiness reb tcd to schozophrenio to orrivc lotc for mon thon a docodc but btcr dosciplincd him denied him nextimc and temunoted him
Summory judgment for defendont reversed oouns must cngagc on a fKt-bullpocofic onqwryh into a JObs euential functions
Goven the bullvaobbility of nexttme and dcfendont$ histcry of ppronng McMillms lotc om-11$ then -15 o genuine IJ$Ue of
-tcri1ol fact whether orri-ing on time w-u an euential funcuon of the lob
ADA QUALIFIED ATTENDANCE
Wandersee v Fanners 2012 WL 1666391 (D Ifinn llay 9 2012)
bull Bank compliance officer h MS sought ond IS denocd a Ocxible work schedule (oncludong working oucsode norm) butlung hours) to overgtgc o 40-hour 1-ork week
bull Coun connot find )5 o molter of low that Wonderscc -15 required to Ork spocofic hours ot the bonk as an esscnual function of her jOb
May 9 2014
42
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
Gog nan y Federal Reocryc Bank of New York 2013 Wl 69196 (SDNY Jgtn 7 013)
EEOC y United Airlines Inc
EEOCv Ford
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
REASONABLE ACCOMMODATION INTERACTIVE PROCESS
bull Plgtintiff who hbulld PTSD bucd on bullbullPriencc of being trtpPd on gtn office building ncar the World Tnde Center on 9 1 1 hd gtn extreme febullr of workmg on a bwlding overlookong Ground Zero He requested tO be moved to reds Mbullon Building or 10
tdework
bull Held Employer rngty not have engaged on good ftith in the intencrive proceH where ir denied nqiltst becgtuse o f poor pcrformmcc it offered altcrnarivu thar dod not resolve rhe problem and ot stgtted rhbullt ot w1ll not 198 ro chan ots mtnd
REASONABLE ACCOMMODATION REASSIGNMENT
2012 WI 3871503 (7h Cir Sept 7 2012)
bull Obullorrubng EEOC Hot1bullbullmiddotKit64 m loglgtlt f USAiiJmiddot 1 ilmult the coun held thgtt the ADA docs ondced tTWldarc that an employor Jppomt emplorees With dbullnbiJuct tsV2C1Jtt poUaonbull fur whech they are qualtfied pnmded that such aeeommOOtiont wgtuld be onbnanly rnsongtble and would not pment an undue hudthip to tlut employltT
bull fLmrdtrr1cC1ed th propo1nwn an Htbullsllldtthl that the ADA is fleelr a o4nondCscnnUnaaon JDNtc and bulloot a rmrubtory preference act sDtulg dut suchan enr))rrabOn bullbullfampJls to recogmze what the JDA l(laquofle11 namrly that preferenon w U tomebmes probulle necnurr to xhtne the Actbull buoc equal oppomomty goal
REASONABLE ACCOMMODATION TELEWORK
Motor Co 2012 VL 3945540 (ED llich Sept 10 2012)
bull llamuff a rcsale buyer wu denoed her request to teccommute from home for up to four days a cck
bull Summary judgment for employer bull plgtinnrrs tab which required spur- ofmiddotthe-momcnt group problemmiddotsoJvng did not 1end tself to frequent unpredictable middotorkdays out of the office
May 9 20 1 4
43
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Univ of Texas Southeastem Med Ctr v Nassar
Patct rwttJff Dr Nbullnbullr omptantd It hmtl to Dr Fiu about hil llolp(fttQr Or LtviN for t11UUMI1 bullcrurinulnc hit bJlinc pncnn and ptoductmty and fabull ttabnJ tNt middle-c-utlmln art au In trambullbOftltll iO a po11hl)ft 1wty from hit I4Mndor De Nauar wtOttthat tht ttuon fCNthtmcm IIU 0f- LtWtt ft f)l1ll and eulnatalbw IIIIIU Anbt 1nd MUIIliml 1hlt rnulwd 1n a hottJr Mlik nmn3NTWnL Soon thtrtafctr phatlbfrl
offtt wu ttmndrd it wtt obMrd co br (h Fm to whomplairlbpoundf firu compW4
Supmnc CcMt OttiOft- The eot ncartd the FifrhCuaalbull dtcuion ond tvld dut 1M IIPPfDPLitc ttandml of llabWIJ fobull Title VII rrtatitt10n tlaime a lht but lot UutlbOtl ttMdanl tht Court JtctN dw uandtd sn fonh 1n Srctton 70J(mJ ofl1clt VU andrcm4Nitlithe cur fot Nnhtr conudlrstioft contiltml vn h tn opWan lrnpliuOOM or Otcaon n dt-cttiCNI platnnffa 1Q prowe lha1 tttaldcion Iamp llv t for CaaampC of an adwrv acnon In cau1 nftn both rrtalithon and natw (t4-o nctr duciWMItton the JW1 mty hnt- 10 bt 111 NiO Jfltrtnt u utton imtNChom
Selected Recent EEOC Consent Decrees and Decisions
o Hetuybull Twi by I 2013 (Dabullenport IOWl bull ADA mtciiCCtual dlsabiluies o Jury Awanl $2 0 moUion
Care giving Discrimination
44
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DI STRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Discrimination Against Caregivers
bull Covered under EEO Jaws when based on a protected characteristic
bull Also implicates other laws eg FMLA
Family responsibilities discrimination
Caregiver stereotyping under the ADA
It is unlawful to discriminate based on stereotypes about an employees ability to balance job duties and care for a relative or other individual with a disability
Caregiver stereotyping under the ADA
bull Example A job applicant reveals during her job interview that her husband has MS Under the assumption that she wiU not be able to work overtime when necessary the employer refuses to hire her
45
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
GINA Genetic Information
Nondiscrimination Act of 2008
Caregiver stereotyping under the ADA
bull Note however that an employer is not required to provide an accommodation to the employee in order to aUow him or her to care for the person with a disability
ADA vs GINA
bull ADA prohibits discrimination on the basis of manifested conditions that meet the definition of disability
bull GINA prohibits discrimination based on genetic information and not on the basis of a manifested condition
46
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
Jha11101 atplaquoJt rrqJiitr ortutrrbtm
rcqucsripg rcqymog or pnrcbasjpg
confidential
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Acquisition of Genetic Information Prohibited
bull General Rule- 29 CFR 16358(a)
bull Covered entities brencllc mfonnation of m applicant or employee
Basic Rules Related to Employment
bull Prohibits l1il of genetic information to discriminate in employment
bull Includes prohibition on h ruJmcnt and rot li l10n
bull Restricts employers and other entities covered by GINA fr om genetic infonnation
bull Rlaquo]uircs that covered entities keep genetic information subject to limited exceptions
What is Genetic information
bull Genetic Information includes in formation about
I An ondivoduals netic test (16353(1)) 2 Genetic tests of funily members (1 635 3( )) 3 The manofeslltoon of a dosegtSe or disorder on family
members (family medocal hostory - II conditions not lomned to condmons currently kno-n to be mhentablc middot
1635J(b)) 4 Rcquestnceipt of netiC servbullcu 5 Genetic info of fetus or embryo camcd hcld by mdl1olual
or family
May 9 20 1 4
47
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
uuittingly
bull Exampls ofjnadv acnr acquisjrion- 16358(b)( l )(ii)r
response mquiry about fgtrnily tg 1ih qwbulls voyr son frcltng today or Dtd __ __ __ nr gt ked
been iignosed
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Genetic Information DOES NOT Include
bull Information about an individuals or family members race sex ethnicity or age
bull The fact that an individual currently has a disease or disorder (manifested condition) - this individual would be protected by the ADA if the disease rises to the level of a disability
No GINA Liability if-
Six Permissible Receipt Requirement
Acquisition or use of Genetic information
under 1635 8(b)
1 No Liability for Inadvertent Acquisition - 16358(b)(1)
bull Protects CO red entity that receiCS otherwise prohibited generic information
bull wpt of unsolicited cttUll mesuge thu 1ncludcs genetic informtuon gtbout bulln employee
bull during a cgtSugtl con venatiOn or on to bull general the bullndllulls or members -middotell being
of gtn employee whose mother hgt just u1th cgtnccr
May 9 20 1 4
48
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
Medical Exams Related to Employment -
proyWed to tbe emnJoyer
g
ung
g
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Prohibition on Requesting Genetic Inronnation during
16358(d)
bull ADA Employers may conduct post-offer medical examinationsinquiries or fitness-forshyduty examinations consistent with ADA rcquirements
bull Employers must direct THEIR doctors NOT to coUect genetic information when conducting employmentmiddot relatcd mcdical exams (eg post-offer or fitness-for-duty medical eCaminations)
Employers Requesting Health Information - 16358(b)(l)(i)
bull If mploy r nmJ1 (vrrbally or in writing) individual and 1hrit hrahh care providers from whom rmployer soughbull in formation Ihat genetic in fornution mus1 NQIh
but i1 nc iv s gene11c information anyway 1har receipt will be considered inadvertcnland not a viol31ion ofGINA
bull If employer does no I give such a notice it nuy tull emblish 1ha1 i1s receipt of genetic infornution was madverten1 1f i1s requeft was not likely to result the employer obtaminggenetic infornution
Model Language for Warning -16358(b)(l)(i)(B)
bull TheGmehC lnfomution NondiKnm mhltgtnllcl of2008(GINA) prohibus rmployttnd othltr tnloties coverrd by Gl Nil Titllt II from laquoqutllin or requtringgmtiiC infomuiOn of bulln indoVIdWllor ampmuy mMnbtr of the odovodWl ltgtcP u bullpecofUy bullOoTltI br 1hos bw To complr ith this law illtt a l1121 you nor provult- illnr CilCh( utfonnation tohrn rrspondtng co this rr9uru for mnbcal ufonnahon Gmenc informatiOn bullbull dcfoned by GIN Amcludto an ond1vodWllo fgtmdy medial hos1ory 1he rt1ul1gt of gtn ondovodualo or family mrmbtrs gtnlthlt 1n1gt 1he ampc1 1hat an ubulldoniWllor an u1divodWlis family mrmbtt sousht or ffCen-ed grnrhc KrvtCel and rnruc mfonnation of a fttul nmnlbr an olldMdWlior an mdYodWllo famdy rn=btr or an cmlnyo bmiddotfuUy held by an uodnndual or ampmily mrmbtt receiving gtUIIIM
roduenvt krlCel
May 9 2014
49
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
c
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
2 Permissible to Acquire Genetic Information Through Employer-Sponsored Health or Genetic
Services - 16358(b )(2)
bull Employer may rcquell genetic information 111 pan oro hcohh or genetic 1ervke 1uch 111 a wcllnc11 prognm thou mcell 1pecific rcquircmenll bull Voluntary rmployrr musl not rrqu1n partsapauon nor ptmhu
employ who o not panicbullpatr
bull Pnor bWNo-mg volun af) and wrinm au1horizaoon
bull lnfonngttKgtn gon only to lfl lVduollnd hahh ca provodtr
bull Employtt gtts bullnformnion only bulln oggttgatlt fonn bull No ftnancial iMucrmonts (r g h gift catdo Hlum) may be
offeftd in RNm ror thr pEOISIOR ofgMrhC lnfOtmaiiOO
Financial Inducements That Are NQ1 Prohibited by GINA - 16358(b)(2)(ii) and (iii)
bull orrmng $150 to rmployerbull 10 fill out 100-qutotlon HRA thot includrs 20 questions about generic 1nfonnat1on IF ductions make dtlr thot SISOwtll be gwrn whcther or not the 20 queohom conlaquombullnggtntht information bull answr and drorly rntbullfydmse qurstions
bull Offoting $150 to daose who chao to panicipart 1n eight numgmtellt program as long 11 pamcrpation and inducemnu 11 offtrtd bod on volun11nly provultd gtnlth infomuhon weUas mformanon concemmg rurrmt hnbh status 1nd ltfe sryle cholCeS
bull Samt is above offltnngrnubull totJimg SISOyeor for altlultVlnJ cenao hrohh goal like lotingweight or lowrnng cboletterol
3 Permissible to Acquire Family Medical Histocy under FMLA-
16358(b)(3)
bull lndh-idual requesnng lean under FMLA OR other similar local or Stile laws OR company policy to care for fam1ly member with serious heahh condition toill be required to provide family medical history
bull Covered entity who receives this information does not viobtc GINA but must keep It in separate medictl file and feat i1 as a confidential medial record
50
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
4 Pennlssible to Acquire Genetic (nformalioo Through Commercially amp Publicly Available
Documcnl8 - 16JS8(b)(4)
bull NtWspapers periodicals magazines books
bull Information obtained through electronic media such as television movies or the Internet
Exception Dalt1 Not Apply if Employer Acquirebull Genetic Information Through The1e Source
bull mecllcal datababullebull court ncotdt or nearch databa1e1 available to bullciencibulltbull on a rebulltricced babullibull
bull bullourcebull th limited bullccebullbull (ie thoee that require pcrmi11ion to accebullbull liom a opecific incllvidual or iten acce11 it conclltioned on mcmberthip in a group)
bull commetdaUy and publicly available IQUtccl that the covered entity acce11ed with the intent to obtain genetic information
bull IQUneo whether or not they arc commcrciUy and publicly available ifthc covered entity Ibull likely to acquire 11cnedc information by acce11ing that iQurcc
5 Pennissible to Acquire Genetic Infonnation Through Genetic Monitoring
- 16358(b)(5)
bull Must meet certain requirements bull Wr inen nmicc and knowing volunrary authorization (unless
required by law or reg ulation)
bull Information goes only to indivodual and hellth care provider or cenified netic counselor onvohmiddoted on monitoring program
bull Covered ntiry IS informgt lion only on the bullJilfJ31C
51
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
6 Permissible to Acquire for DNA Testing - 16358(b) (6)
bull Applies only to employers that engage in DNA testing for law enforcement purposes as a forensic laboratory or for purposes of human remains identification
bull These employers may require genetic informacion from employees only to the cxtent thu such genetic information is used Cor analysis of DNA markers Cor quality control to detect sample contamination
Confidentiality - 16359
bull Beginning Nov 21 2009 and thereafter genetic information that an employer has must be kept confidential and placed in a separate medical file (ADA file is OK)
Disclosure Allowed if M
bull Luruted Dbullsclosu Rules - Some xcep110ns similar to ADAs rules others unique to GINA
bull Exceptions - IG35 9(b
bull To the individual or fumily member to whom the information pertains subject to written request
bull For research purposes pursuant to 45 CFR Pt 46
bull For FMLA purposes
May 9 20 1 4
52
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
genetic the
contagious pre ents hazard life-threatening
(Workers duty)
Occupational the employees
the
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Disclosure Allowed if-
bull To government officials investigating compliance with GINA where relevant
bull Pursuant to court order but only the information expressly authorized by order
bull To federal state or local Public health agency where an indrviduals fambullly member has a
disease that imminent of death or illness
A Word about EMR
Discussion applies to both ADA and GINA Information
Electronic Medical Record (ElIR) that contain bull work related injuries and illnesses or other
occupational health information Camp fitnessqualification for and
bull personal health information about manifest conditions (ADA) or non-manifest conditions (GINA)
bull Issues Raised
bull Should an Employer or its Health Provider (ab-ent) have access to health information via the ElIR without employees consent and
bull What obligation does the emplo)er have to safeguard confidential EMR
May 9 20 1 4
53
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOSIUM
ANALYSIS
bull Title I of the ADA and Title II of GINA limit employer access to medical information
bull Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files it must ensure that personal health information about applicants or employees cannot be accessed except under the prescribed circumstances
ANALYSIS
bull No basis for distinruishing between this situation and other disability-related inquiries
bull EG Vhere an employer asks an employee or an employees doctor to provide documentation about a disability or searches through an employees belongings for the purpose of uncovering information about a disability
ANALYSIS
bull Once an individual begins working an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity 29 CFR at i 163014(c) Generally this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perfonn the job or will pose a direct threat due to a medical condition
54
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ANALYSIS
bull Medical information also may be obtained to determine whether an employee with a nonshyobvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave such as leave under the Family and Medical Leave Act or under the emplorers own sick leave policy
ANALYSIS
bull Tite information sought must be limited in scope For example an employer cannot ask for or view an employees complete medical record because it is likely to contain information unrelated to the need to make an employmenr-related decision
bull An employer may not obtain medical information about an employee or view an employees personal hcalrh information unless the employee has executed an appropriate release
ANALYSIS
bull ADA pro ides that informtion obtained by an employer rcguding the medical condition or history of an applicant or employee must be collected on separate forms kept in separate medical files and be treated as a confidentill medical record 29 CFR sect1 6l014(b)(l)
bull Genetic informtion obtained under one of GINAs limited exceptions must also be kept separate from personnel files and treated as a confidential med1cal record
bull This information may be maintained in the same file as medical informtion obtained under the ADA 29 CFR sect16159
55
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Maintaining personal health information and occupational health information in a single EMR particularly one that allows someone with access to the EMR to view any information contained therein presents a real possibility that the ADA GINA or both will be violated
ADA FMLA WORKERS COMPENSATION
bullSide By Side
Comparisons
Side By Side Comparisons
bull Q What is the relationship tween requirements of the FMLA the ADA and Tide VII
bull A The FlILA and the ADA both require a covered employer to grsnt medtcal leave to an employee in certain circumstances
bull The FJILA and Tade Vl both have requirements governing leave for pregnancy and pregnancyrelated conditions In addiuon under 1idc VII employers must not discriminate on the basis of race color re gion sex or national origin when they provide family or mcdical leave
56
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull Q Who enforces the FMLA
bull AThe Department of Ltbor enforces the FMLA The poundEOC ha) no enforcement nsponsibmty for the FMLA
bull Q What leave it an employee entitled to under the FMLA A Under the FMLA an eLgible employee may take up to 12 workweeks ofleave during any 12middotmonth period for one or mon of the following nasonsr
bull (1) The binh of a child and to can for the newborn child (2) The placement of a child with the employee through adoption or fmter can and to can for the child
bull (3) To can for the employees spouse son daughter or pannt with a rio us health condition and
bull (4) Because a serious health condition makes the employee unable to perform one or more of the e mtal functions of his or her 1ob
bull Xihat other rights do eligible emplorees have in conjunction with FMLA leave
bull A During FMLA leave an emplo)middoter must maintain the employees existing level of coverage under a group health plan
bull At the end of FMLA lcavc an employer must rake an employee back into the same or an equivalent job
57
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
When FMLA ADA and Title VII Coverage Overlap
bull Q Whgtt nnployen art cobull= by tht FMLA thc ADA and Titk vm
bull A The FMLA coven pnvate cmployen woth 50or more cmploytlts
bull The ADA and Titl VII cobullbullct private tmployen with IS or mort tmploytes
bull TIIUsonly thoK pnvatt tmployen With SO or mort cmploytcs art covcttd cmocunently by tht HILA doe ADA and Tulc Vll
bull Statlt and local gobullctniTICIll cmploytn art cobullmiddotbull by tht ADA and tht FMLA rtgotdltll of tht numbolt of tmploytts
bull Statlt and local govtmmtnt tonploycn art cobullmiddotbull by Titlt Vll hownmiddotu only 1f th luve 15 or more nployrCs
bull Arc all employee who are protected by Title VI or the ADA also cntitfcd to leave under the FMLA
bull A No Employee protected by Tittc V I or the ADA must be independently e gible for FMLA leave Eiigtbility for FMLA leave depends on $centetll factors for example length of servtce or the number of work weeks already US(d by the employee under FMLA In lddition an individual must be employed by an FMLAmiddot coend employer with 50 or mon employees to obtam FMLA leave
FMLA serious health condition and ADA disability
bull Q What is a serious health condition under the FlILA A An FMLA serious health condition is an illness injury impairment or physical or mental condition that involves [i]npatient care or [c]ontinuing treatment by a health care provider
58
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
bull Q Ibull an FMLA ltrioubull hnhh CQndonon the as an 1DI do Woly
bull No An FML smous heahh condition i1 not nternanly an ADA bulldisability An ADA thuhbulllny 1S an 1mpunnrn1 lhal substumally htnIIS one OJ mote ltIJOt l1ft achnhtS il record 0pound tuch an ompaonnenl or bemg reganled a1 loavong such an impainnen1Some FMLA ltrious hnhhcondmons rnay be 1DI dosabilories for eumpk mos1 cancrn Jnd senous srrolres 0d1Cr Krious hnbh condinons may nol be 1DI disahllihu for example pltqIWIC) or 1 murine brokrn ltg or hrmia llus is brause the CQfldlhon bulls not an 1mpatnnen1 (eg pRgnancy or be-campust Ihe 1mpunnmt 11 not subslanhally lnn11ong (eg a rouhne broken lbullg or hnoa
bull In addition the fact that an individual has a record of a serious health condition does not necessarily mean that she has a record of an ADAdisability Under the ADA an individual must have a record of a substantially limiting impairment in order to be covered
bull Finally just because someone has a serious health condition also does not mean that the employer regards himher as having an ADA disability To satisfy this prong of the ADA definition of disability the emplo)er must treat the individual as having an impairment that substantially limits one or more major hfe activities
59
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To determine if an individual has an ADA disability aU pertinent evidence including any information about whether the individual has or had a serious health condition should be considered Under the FMLA regulations emplomiddoters must aUow EEOC investigators to review pertinent FMLA medical certifications and remiddotcertifications and other relevant materials upon request
Medical Certifications Inquiries and Confidentiality
bull Is there a conflict between the AIlA provision aUowing emplo)middoters to ask for certification that an employee has a serious heahh condition and ADA restrictions on disability-related inquiries of employees
bull 1 No Wh n an mploye requests leave under the FMLJ for a serious health condition employ rs will not vtoJte the 1DJ by asking for the information specified in the FMLJ cenification form The FlILJ form only requests information relating to the particular serious h alth condition as defined in the FMLA for which th mploye is seeking leave 1n mployer is entitl d to know why an mployee who otherwise should be at work is requesting
time off under the FIILA If the inquiries are strictly limited in this fashion they would be jobrcbted and consistent with business necessity under the 1DJ
60
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull May an employer keep a single confidential medical ftle for ltach employee separate from the usua1 personnel file for medical documentation under both the ADA ami the FMLA
bull A Yes An employer mty keep a single confidential medical iile separate from the usual personnel file containing both FMLA and ADA mcdcal nformtion bullf the employer follows the ADA confidentiality standards This includes followmg the ADA interpretations of those confidentiality exceptions that arc set forth bulln b01h the ADA and the FMLA regulations22 For example employers mty not gle supervisors and mtnagers un mitcd access to the mcd1cal files However employers mty give supervisors and mtnagcrs informuon concerning necessary work restrictions and accommodatiOns
Comparison of ADA and FMLA Leave
bull Q Docs the FIILAs limit of 12 workweeks of leave in a 12middot month period mean that the ADA also hmits employees to 12 middotecks ofleave per year
bull A No The FMLA doc not mean that more than 12 weeks of unpaid leave automttically imposecs an undue hudihip for purposes of the ADA An otherwik qualified ind1 idual W1th a disabity is enutled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leamiddotc would not impose an undue hudsh1p on the operation of the employers busmess
61
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
bull To evaluate whether additional leave would impose an undue hardship the employer may consider the impact on its operations caused by the emplopes initial 12middotweek absence along with the undue hardship factors specified in the ADA See 29 CFR sect 16302(p)
bull Q How do the ADA and th FlILA requirements compue regmling intermittent or occasional leave
bull A Under the ADA a quabfied individual with a diEab1hty m1y work partmiddot time in hiS her current position or occaSionally take time off as a reasonable accommodation if 1t would not impose an undue hanbhip on the empo cr If (or when) reduced hours create an undue hardsh1p in the cumnt position the employer must sec if there is a vacant equivalent position for which the employee is qualified and to umiddoth1ch the employee can be reassigned Without undue hardship while working a reduced schedule
bull 1 ( lR laquoJUknt positiOn IS not l IUbk the ompl yltr ffiUST look fOt 2 want pooirion at bull lower lmiddotd for wholth lht employ IS ltJUgthfitd Conunutd auonunoda11on rs nor ttqlurtd if a vaan1 postton ar a lower lcmiddotol IS aloo ungtvtobblc
bull The ADA dOlto not prolnbit an ltmployltr bullnd bulln employltlt from bullllft1ngon bullnotlltf mutually alaquoltptobk bullc gttoon Fot tumpk bulln tmployltr and ltrnp lt mgty gtgrlt lo bull tnnsfltt on lttthltr bull tltmporuy or a pltnnanmt buiS 1fboth partiltS btlJtVt that tulth a tnnsfltt lffltrablc 10alaquoammoduongthlt ltrnplOJltlt on lushltrcurrmt position
62
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FlILA an eligible employee may take leave intemuuently or on a p311middottime bam for his or her own serious health condition when medically necessary for 1reatment or recovery until she has used up the equivalent of 12 workweeks in a t2month period When such leave is foreseeable based on planned medical treatment an mployer may rcqwte the employee to temporanly tttnsfcr
(for the duration of the leave) to an avaolable alternative position for which the employee is qua lied and which bencr suits hisher reduced hours
bull Q Whao= middot uuamnrnr ripns wgtdltr rhlt IDA and rhlt FMLAI bull A Uodltr thlt IDA ohr anployrr isrnudltd rrcum rhlt job unltn rhlt
ltmploytr dtmOOsrra holdg lht job open ould P undur hardship
Ill tn KWnr mbncHJ11 nTpiOJ T fTCIIMit rmrt In undn cht ADA tvm arttr thlt r hn communoad dut annal hold lhr rmpiltgtJlaquobull job open any
grr (lr lhrrr is undult hbullnbhop) In lhis lhr 1DAd ltmpiOJltr mwa Itt 1fir twa nant tqwnJetu posmon for lihith 1he nnpofH di quilir and 10 wtuch die tmPOJHan be rnn wuhouc undue hanbhp 10continue hiahtr leave If an tgtqubullvaknrpotlbon tt nor avWINt 1fle tmPortr muuloolc for a vxJnl pot ilion at a lowtr Jcvd CDntlnutd xconwnod1tion 1a no I ubullml if a lr1Cift position at a lnd is also unanJlhe
bull In other instanc s an employer may hold the original position open and the employee may IIn to return to work but may be unable to pcrfonn an essential function of the original position even with reasonable accommodation Under the ADA the employer must then consider reassignment rrst to a nc nt equimiddot lent position for which the individual is qualified and if one is unavailable to a vacant position at a lower level Funher accommodation is not required if a vacant position at a lower level is also unavailable
May 9 20 1 4
63
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
bull Under the FllLAa n employee is entitled to return to the same position or to an equivalent posirion29 However if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condtion the FllLA does not require the employer to reinstate the emploee into another job
bull Q Do the ADA and the FJILA requuc an employer to continue an employees health tnampurance comiddoterage during mtdical leave
bull A- Under the ADA an employer must continue health insurance coverage for an employee talung leave or woclung plttmiddot time only if the employer also provides coverge for other employees in the same klve or plttshytime status coverage must be on the same tenns normally provided to those in the same leave or plttshytimc status
bull Under the FMLA an employer always must mainttin the employees exittmg level of comiddoterage (includ1ng family or dependent coverage) under a group health plan during the penod of FMLA leave provided the employee pays h1s or her share ofthe premiums) I An employer may not d1scnmmare agunst an employee using FMLA leamiddote and therefore must also provide such an employee wuh the same benefits e-f bfe or disabrlity inrurance) normally prov1ded to an employee in the samt leave or plttmiddottime latus
May 9 20 1 4
64
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
ADA Compliance When the FMLA Also Applies
bull Q lf an individual uuts Innlt off lor mrdical trnlmltnl should lht ernpio7er lrnl dus as a Ultsl for FIILA leavbull and ADA rnsoruble uconunocbuon
bull A If an bullmploy qu u orne off for a son btro or po gtobly btro ID a dosaboloty(ltg I nbulld wis off to grt rrnrmltnl for a
k problem II employer tbould consoder this a rrqurst for ADA JOilablc arconlmOIation as wtll as FIILA leavt Tht bullmrloybullr may quo FIILA terllfocation and may makbull additional LIIJbilitymiddotmiddotttbtttl tnqubull s 1r nrtCtury to drc1de whtthrr che rmployCr it enmiCCI to reasonable accommodation brause 1 he also has a coverrd dosability Howevrr oltl nnployu statts that sJhbull only 1112111gt to onvokbull nghlt undn thbull flgtILA thbull nploybullr should not make add11oonal onquonro rltbtro to ADA covnagr
bull Q When both the ADA and the FMLA apply how should the employer determine which terms and conditions govem the employees initial 12 weeks of medical leave
bull A Under the FMLA rule an employer must provide leave undcrwhichevcr statutory provision provides the greater rights to employees
bull Q As an altcmathmiddote to a leave of abKnce may an employer offer an effective reasonable accommodation that will enable an employee to conttnue working
bull A An employer rtty offer an employee a reasonable accommodauon other than the lcae she requested under the ADA as long as it is effective For example an employer may offer an ass1stive device an opportunty to work ttduccd hours in the employ middot curttnt job or a temporary ass1gnmcnt to another job if these arc effccthmiddote accommodauons
65
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DI STRICT presentation to BROWARD ADA SYMPOSIUM
bull l lowever if the individual is eligible foe leave under the FMLA and has a serious health condition that prevents himher from pecfonning an esscntill job function s he has the eight to 11kc a leave of absence of up to 12 workweeks in 12 months even if she could continue working with an effective reasonable accommodation While the Fr-ILA does not prevent an employee from accepting an alternative to leave the acccpllnce mwt be volun11ry and uncoerced
The ADA and Family Leave
bull Q Does the ADA require an employer ro give an employee rime off ro c= for a spouse son daughter parent or or her indimiddotidual wirh a disabr ry
bull A The ADAs reasonable accommodation ob gauon docs nor reqUite a covered employer to gtve an employee trme off to c= for a spouse son daughter parent or other individual with a disabi ry with hom the employee has a relationship However an employer would be reqwted to provide leamiddote on the same terms as it normally provides leave to employees who need ro care for someone who ill
ADA Disability vs Serious Health Condition
bull ADA Disability - menml or physical impurmcnt that substantially limits a major life acrhiry
bull FMLA Serious Health Condition - an illness injury impairment or physictl or mental condtnon that invohmiddotes Inpatient care or continuing treatment by a hQlth care proider
May 9 20 1 4
66
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
coverll 1-ith
cmplorce employment
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
Employer Coverage
bull ADA- I 5 or more employees for 20 weeks during current or preceding cakndtr yar
bull FMLA - so or more employecs Within 1 75-milc rtdius for at laampt 20 weeks during current or preceding calendar year
bull Workers Compensation - State laws govern tpplics to mosr Ccn smtll cmploycrs
Employee Eligibility
bull ADA Jpplicont or employee who mem one of the prongs of and con rform the essential functions of the position or lo1thout rcuonoble CcommOltbtion
bull FMLA- An employee who hos worked ot leut 1 months and 1250 hours pnor to the stan of the leove and who Orks at bull loorltsote where there arc 50 or more employees loithin bull 75 mile roltLus
bull Workc Com nution- An who hu on on jury onsong out of or on the course of
Use and Length of Leave
bull ADA - No specbull roc limit for the omount oflu c u bull
reuonob occommodotion thot ds not creole on undue hordsh1p on the employer (RA for di1abled employee)
bull FMLA- 1 weeks m the 1 month period u derned by the employer (quoli(ying event to care for Immediate family member)
bull Workc Compcn13tion - No 8pccbullfic hmit for the amount nf leovc m on jured -orkcr moy hove (injured employee)
May 9 20 1 4
67
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
regarding l1m1tcd
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOS IUM
Medical Documentation
bull ADA- Medical examinations or inqunict an employees dosab1ltty that arc jobmiddotrelated ond to determinmg ability to pcrfann the job and whcthcr accommodatiOn 1s needed utd wid bc cffccttve
bull FPtiLA - Medical ccrtilicotion of thc need for the leave not to txeltcd whgtt IS rcquered in thc Department of ubor (DOL) McdiCol Crtllicollon rm
bull Workcra Compen1ation -Medical information that perta1ns to the employees on rhemiddotjob mjury
ADA Medical Exams amp Inquiries PnmiddotEmploymcnt Appllcadon Procell
bull Prohibits pre-employmenr inquiries
NO workers compensation questions
NO medical history questions NO prescription drug questions
bull NO questions about reasonable accommodation unless obvious disability
Do Not Ask Pre-OfferPre - Employment
bull Hamiddot you v r bt n addicr d ro drugs
bull A you or have you v r bt an alcoholic
bull HaC you vcr fil d a work rs compensation claim or suff rcd an injury on a prc-lous job
bull Will you need time off for medical rrearm t or other reasons associated umiddotith your disabtlity
bull Viii you need an accommodation to perform this job
May 9 20 1 4
68
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
iob-rrlattd mul roWtal with lwiam lltWDfy
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Okay to Ask Pre-OfferPre - Employment
bull Can you perform the job with or without an accommodation
bull Are you currendy using drugs illegally
bull Vill you be able to meet the requirements of our work hours overtime work attendance policy
ADA Medical Exams amp Inquiries Po11 Ofrcr
Abull c-dlliollto llln ol __r IMIDR ewtplof-M kJlshy_
bull Questions about Workers Compensation Claimsbull
bull Medical ExamInquiriesbull
bull As long as questions are asked of all
If rejected the retson for rejection must be
Medical Exams amp Inquiries During Employment
JobRebted amp Consostmt ith Business Necessity
bull Employer has reasonable belief based on OBJEC17VE EVIDENCE
bull Ability to perform es cnrial functions impaired by t
medical condition or
bull EE poses direct threat due to t medical condition
69
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
-
Restricted or Light Duty
bull ADA Required to be offered if it is a rraJoftablt llmmmodalio11 that dDts 1101 malt aii JifldMt hardship 011 bt tcf)IO)middottr
bull FMLA - Cannot be required
bull Workers Compensation - Should be offered if available as it may diminate the employees entitlement ro the wage replacement benefit
Fitness to Retum to Work Certification
bull ADA - lenmled gtS lang u the medocal exbullmmgtllan md mquy 11 1ab-rebted md necesury to detenmne whether the employee c2n perfonn the essential functoons ofthe job
bull FllliA - C2n only be required undor bull policy or pnctoee th2 requores employees who hgtve been an a similar type of lene of absence
bull Workers Compcnoation - 1-ty be and is typocally requorcd
Benefits While on Leave
bull ADA - No specifibull requirements but cannot doscriorun2te and must progt1d ume benefits u those pro1 ded to employees on non-ADA leave of absence
bull FliiiA- Health coverage must be continued at sune level as pnr to the lc2ve Benefits 01her thgtn health benefits 2re determined by the employers emblished pohcy fer probullmiddotitlong such benefits when the empla)middotec os on other fomu of lebullve (pbullod or unpbullid bullbull bullppropngtte)
bull Workers Compcnution - Not required to be contonued unless run concurrently gt1th FMLA
70
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 2014 BROWARD ADA SYMPOS IUM
Reinstatement
bull ADA -Rcqubullred reinst tetmnt to previous job unless domg so would reote an undue hbullrdsh1p on the employer
bull FM LA- Requbullred reinllbulltement to the nme or an equivalent j b- NO undue hbullrdsh1p exception
bull Workcn Compcnoation - No reinSiltemenr rights under most Stilt [alliS
ADA Reasonable Accommodation
Reasonable accommodation is any change or adjustment to a job or work em-ironment that permits a qua lined applicant or employee with a disabiliry (case by case assessment basi$) to
- participate in the job application process
bull perfonn the cmnrial functions of a job or
bull enjoy benefit and pri1legcs of employment equal to those enjoyed by employees without disabilities
Is Reasonable Accommodation Necessary
ADA requires employer to provide reasonable accommodation to qualified individwls 1-ith bull disobiliry (employees or applionts) unless it causes undue h1rdship
Employer obligation bull Must provide reasonable occommodotion to aU aspects of
employment bull This duty is ongoing and may arise any time that a
persons disability or job changes
71
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
Examples of Reasonable Accommodation
bull Written materials in accessible formats such as large pnnt braille or audiotape
bull Adjusting or modifying applicatton policies and proceduru
bull Prmmiddotiding or modifying equipment or devices
bull Reassignment to a vacant position
Examples of Reasonable Accommodation
bull Use of accrued paid leave or unpaid leave for necessary treatment
bull Making a faciliry readily accessible to and usable by an individual with a disability
bull Altering when and how an essential job task is performed
bull Modified work schedules
What is an Undue Hardship
Includes any action that is
Excessively costly
Extensive
Substantial
Disruptive
Fundamentally alters the nature or
appreciation of the business
72
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOSIUM
Accommodation amp Employment
bull If the accommodation found does not cause the employer an undue hardship then the employer must provide it to the employee
bull If no accommodation is able to be provided then the employer may release the employee
Health or Safety Defense
If an individual appears to pose a direct threat because of a disability the employer must first try to eliminate or reduce the risk to an acceptable level
ith reasonable accommodation
If an effective accommodation cannot be found an employer may refuse to hire an applicant or discharge an employee ho poses a direct rhrear
The ADAAA contains strict confidentiality requirements
bull Medical information must be kept confidential and out of personnel files
bull Limited access to gtSupervisors and managers
gtFirst aid personnel gtADA investigations insurance carrier
workers compensation
73
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to BROWARD ADA SYMPOSIUM
EXAMPLE Interaction of ADA FMLA and Workers Compensation
Employer Cmmiddotern1re
Employee Elig bility
3 Length of Leave
4 Medical Documenlrion
s Restricted or l-ight Duty
Fttness-tomiddotRcrum-tomiddotWork Certification
Benefits while on leave
Rdnsltement
Questionsil
Access EEOC Resources
bull Visit the EEOC web site at
wwweeocgov for guida nce fact
sheets EEO updates and training opportunities
bull Contact the EEOC Program Analyst in your area to ask EEO-related questions confidentially
May 9 20 1 4
74
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75
EEOC MIAMI DISTRICT presentation to May 9 20 1 4 BROWARD ADA SYMPOS IUM
EEOC Program Analyst
Training Outreach amp T echoical Assistance
Florida Puerto Rico amp US Virgin Islands
Elaine McArthur
EEOC Tampa Field Office
Phone (813) 202-7924 Email elainemcanhureeocgov
Helpful Telephone Numbers
EEOC National Help Line
(800) 669 4000 A ibulltancc mvailable in o r ISO languagebull
EEOC Miami District Office
(305) 808 1740
EEOC Tampa Field Office
(813) 228 2310
75