The ADAAA, Affirmative Action, and Other Hurdles Faced by
Health Care Employers
HCRAMD & MiAHCR 2014 Fall Conference
Presented By:Brad Taormina
September 26, 2014
Americans with Disabilities Act of 1990 (ADA)
Prohibits discrimination against qualified individuals with mental or physical disabilities
Enforced by the EEOC
Requires employers to provide reasonable accommodations to employees with disabilities
Who is “Disabled” ??
A person who is . . .
A person who was . . .
A person who is “regarded as”
. . . substantially limited in one or moremajor life activities.
ADA Amendments Act - ADAAA
Congress now says:
“The definition of Disability shall be construed in favor of broad coverage…”
“The question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis"
"Major Life Activity" includes:
Caring for oneself Learning Manual tasks ReadingSeeing ConcentratingHearing WorkingEating BendingSleeping SpeakingWalking BreathingStanding CommunicatingLifting
*not an exhaustive list
"Major Bodily Functions" include:Immune systemNormal cell growthDigestionBowelBladderNeurologicalBrainRespiratoryCirculatoryEndocrineReproductive
*not an exhaustive list
Disability exists without regard to "Mitigating Measures"MedicationMedical supplies, equipment & appliancesLow vision devices (not eyeglasses or contacts)ProstheticsHearing aidsMobility devicesOxygen therapyAccommodation, auxiliary aids, learned behavior
Reasonable Accommodation – Recognizing the Request
Not required to be on any particular form, or in any particular format
Employee request linked to a medical condition should trigger the interactive process
Reasonable Accommodation – Recognizing the Request
For Example:
Completion of employer’s reasonable accommodation form
Work restrictions
Employee tells supervisor, “I’m having trouble getting to work at my scheduled starting time because of the side effect of my medication. Can we work something out?”
Interactive Process
Informal dialogue and interaction between employer and employee to determine whether accommodation is needed because of a disability and, if needed, whether the accommodation will be effective
Often when will obtain physician statement verifying disability and outlining restrictions/accommodations
Accommodations That Are NOT Reasonable
Employers are not required to:
Create position
Eliminate or transfer essential job functions
Convert necessary full-time positions to part-time positions
Provide personal need items (hearing aids, eyeglasses)
“Reasonable” Accommodations Include:
Acquire or modify equipment Modify policies, exams, training Provide readers or interpreters Make workplace accessible If employee cannot perform
duties of current position, may need to place into a vacant position where work restrictions can be accommodated
Undue Hardship
Accommodation is not “reasonable” where it creates an “undue hardship” for the employer
EEOC describes standard as “stringent”
Whether a particular accommodation is reasonable must be assessed on case-by-case basis
Undue Hardship Consider the nature and cost of the
accommodation needed
Focus on resources and circumstances of the particular employer in relationship to the cost/difficulty of providing specific accommodation Significant financial difficulty
Significant administrative difficulty
Relationship between facility and employer
Undue Hardship Considerations (cont’d)
Impact on employer and employer operations
Overall financial resources
Size/Number of employees
Structure/functions of work force
Types/geographic location of other facilities
Affirmative Action BasicsWhat Is an Affirmative Action Program?HR management tool designed to ensure equal opportunity Encourages outreach and positive recruitment of minorities, females, veterans and individuals with disabilities Involves specific data tracking, reporting, analyses and self-auditing of nearly all HR functionsCompliance will require financial and personnel resources and executive level supportMost companies partner with an AA vendor
Affirmative Action BasicsWhat Is the Legal Source?Executive Order 11246 (1965)
Affirmative action for women and minorities
Section 503 of the Rehabilitation Act of 1973 Affirmative action for individuals with disabilities
Vietnam Era Veterans Readjustment Assistance Act of 1974
Affirmative action for protected veterans
Affirmative Action BasicsWho Enforces Affirmative Action Laws?Office of Federal Contract Compliance Programs ("OFCCP")
Stand alone branch of U.S. Department of Labor Has compliance audit and sanction authority Seeks “Title VII-type” remedies if finds
discrimination in hiring, promotions, terminations, compensation
Enforcement through administrative procedure subject to review by federal courts
Affirmative Action BasicsWho Is Covered by Affirmative Action Laws?Direct (or Prime) Federal Contractors – Provide goods or non-personal services to a federal agency
www.usaspending.gov www.fedspending.org https://www.fpds.gov/fpdsng_cms/
Covered Federal Subcontractors – Either (1) provide goods or non-personal services that are necessary to the performance of a prime federal contract; or (2) perform or assume any portion of the obligations under a prime federal contract
Affirmative Action BasicsWhat About Grants?Grants are considered "federal financial assistance" and do not cause recipients to be covered by OFCCP’s jurisdictionDistinguish:
Contracts: Federal government expects specific good or service in return for federal monies
Grants: Federal monies usually offered to promote research, training or other general funding for the nation's general betterment
Affirmative Action Basics
Medicare/Medicaid? TRICARE? Certain HMOs?
Affirmative Action BasicsJurisdictional Thresholds For “Basic Coverage” (which means you must ensure nondiscrimination and take affirmative action):
- Must have $10,000 of contracts (in aggregate) in any 12-month period - No minimum number of employees threshold
For “Full (AAP) Coverage” (which means you must also prepare written AAPs for each establishment):
- Must have at least 50 employees and at least one $50,000 contract at any location in organization- If “open-ended” (indefinite quantity) contract, OFCCP will aggregate transactions over the life of the contract
Affirmative Action BasicsWhat About Separate but Related Entities?Separately incorporated organizations may be considered a “single employer” for purposes of OFCCP jurisdiction and AA complianceOFCCP Uses a “5 Factor Test”
1. Common Ownership;2. Common Directors and/or Officers;3. De Facto Exercise of Control;4. Unity of Personnel Policies Emanating from Common
Source; and5. Dependency of Operations
Affirmative Action BasicsWhat Does It Mean to Be Covered?Must prepare and maintain written affirmative action plans for each "establishment.” This means, among other things:
− Divide employees into "job groups" and compare "incumbency" to "availability"
− Set “hiring goals” (NOT quotas) for minorities, females, veterans, disabled− Engage in and track affirmative action "outreach" efforts − Develop applicant tracking system and recordkeeping practices that
comply with OFCCP’s "internet applicant rule”− Regularly self-audit personnel activity (hires, promotions, terminations,
compensation) − Share all of this data with OFCCP if selected for a compliance review
Affirmative Action BasicsWhat Is at Stake?OFCCP compliance reviews tend to be long, burdensome and costly to defendOFCCP looks at your data for evidence of systemic discrimination, especially re hiring and compensationIf there are statistical indicators of discrimination that cannot be effectively explained, OFCCP will seek back pay remedies for the affected “class”OFCCP settlement demands are routinely in the six to seven figure range when the contractor is unprepared
History of OFCCP in Health CareIt Started Off Good…
1993 OFCCP “Directive 189”: Receiving reimbursement under Medicare Parts A and B or
Medicaid does NOT cause coverage. Medicare/Medicaid = federal financial assistance (like a grant)
2003 Bridgeport Hospital Case Fee-for-service health insurer (BCBS) contracts with federal
government (OPM) to provide reimbursement to federal employees for their medical care costs in exchange for premiums. BCBS contracts with hospital to provide covered medical services under the insurance policy. Hospital is NOT covered (because BCBS prime contract was for insurance only, and not medical services).
History of OFCCP in Health CareBut Then…
2007 UPMC Braddock case UPMC Health Plan, an HMO, contracts with federal government
(OPM) to provide health insurance and medical services to federal employees in exchange for premiums; HMO contracts with three area hospitals to provide some of those medical services
ALJ, ARB and (last year) D.C. District Court all said hospitals ARE covered because their subcontracts with HMO were necessary for the HMO to meet its obligations under the prime contract
2010 Florida Hospital of Orlando case Hospital participating as TRICARE network provider IS covered “Ping pong” litigation ensues
OFCCP in Health Care SummaryWhen are Health Care Providers Covered?
Common and “non-controversial” arrangements include direct contracts or subcontracts involving:
− Federal Bureau of Prisons− Department of Defense− Department of Veterans Affairs− Department of Health and Human Services− Centers for Medicare and Medicaid Services
Uncertainty exists (litigation still pending) about: Provider contracts with HMOs that include federal employees as
beneficiaries TRICARE network agreements
OFCCP has hinted but no litigation yet about: Medicare C and D
Why Is This Important for Recruiters?
OFCCP’s main focus during the course of an audit continues to be systemic discrimination in hiring Failure to hire cases – 66% of all cases
OFCCP is targeting the health care industry
Forms of Systemic Discrimination Disparate Treatment – Pattern or Practice
Intentional discrimination Members of one group are treated differently Company’s standard operating procedure (i.e., typical rather than
exception) The employer must justify each decision to show that it wasn’t intentional
discrimination
Disparate Impact Unintentional discrimination When a facially neutral process (e.g., a test, interview, residency
requirement) screens out a substantially higher percentage of one group than another
Can be justified via showing that the screening mechanism was job-related and/or business necessity
Hot Topics in Affirmative Action Internet Applicant Recordkeeping Rule
Recordkeeping requirements regarding the internet hiring process and the solicitation of race, gender, and ethnicity of “Internet Applicants”
What is an Internet Applicant? Individual submitted expression of interest in
employment through the internet Employer considered individual for employment Expression of interest indicated basic qualifications Individual did not withdraw him/herself from
consideration
Hot Topics in Affirmative Action1. Individual submitted expression of interest
in employment through the internet or related electronic data technologies
Rule applies to paper applications and all other applicants considered if the employer considers expressions of interest for the position via internet
Difference between advertising a position on the internet and expressions of interest
Broad Scope- Applies to email, resume databases, job banks, scanning technology, applicant screeners, and even resumes received by fax
Hot Topics in Affirmative Action Internet Applicant Recordkeeping Rule2. Employer considers the individual for employment in a
particular position. Triggered if the employer “assesses the substantive
information provided” in the expression of interest May establish protocol to refrain from considering
expressions of interest not submitted in accordance with standard procedures (e.g. unsolicited resumes not submitted for a particular position)
May use data management techniques such as random sampling or numerical limits, as long as the sampling procedure is appropriate
Hot Topics in Affirmative Action Internet Applicant Recordkeeping Rule3. Individual’s expression of interest indicates the basic
qualifications for the position: Qualifications that the employer advertised or
established in advance Basic qualifications must be objective (e.g. bachelor’s
degree vs. bachelor’s degree from ‘good’ school) Basic qualifications must be noncomparative (e.g. three
years experience vs. among top ten candidates in terms of years of experience)
Make and maintain a record of the basic qualifications
Hot Topics in Affirmative Action Internet Applicant Recordkeeping Rule4. Individual did not remove himself or herself from the
selection process prior to receiving an offer of employment: Includes express statement from applicant or “passive
demonstration of disinterest” Declining an invitation for an interview Declining a job offer Repeatedly failing to respond to phone calls or emails
regarding his or her interest in the job Can also be based on individual’s responses (e.g. willingness
to travel) as long as consistent
Hot Topics in Affirmative Action Internet Applicant Recordkeeping Rule
Must solicit demographic information of Internet Applicants
Preferred method of solicitation is voluntary self-reporting or self-identification
Must maintain the demographic information separately from the resume or application that will be reviewed during the selection process - this should be communicated to applicants
Hot Topics in Affirmative Action
Disability Inquiries and Interaction with ADAAA Effective March 24, 2014—or whenever their AAP
is next up for renewal following March 24, 2014—covered federal contractors will be required to invite applicants to voluntarily self-identify disability status at the pre-offer stage of employment.
BUT, making pre-employment disability inquiries is unlawful under the ADA.
Hot Topics in Affirmative Action
Disability Inquiries and Interaction with ADAAA The EEOC has recently confirmed, however, that
employers are not liable under the ADA “for an action that it is required to take by another federal statute or regulation.”
HOWEVER, there is a significant legal risk if the voluntary invitation to self-identify disabled status is made available to applicants of employers not subject to the jurisdiction of the OFCCP. This is another reason why the analysis of coverage is so important.
Veterans Several federal and state laws that affect the
recruitment and hiring of veterans USERRA provides the broadest coverage
Protects past and present members of uniformed services from discrimination in hiring and employment
Requires employer to reinstate employees that were absent by reason of service, under certain conditions; employees must be restored to the position and benefits they would have attained if not for their absence due to military service
Veterans Michigan Reemployment Protection Act
Designed to strengthen the protections of USERRA as applied to Michigan employers
Eliminates the USERRA exceptions to the duty to reemploy returning service members
Other State Laws: Michigan statute permits public employees to add the
time spent in military service to the period of employment
Michigan statute affords returning employees the seniority they would have attained
Veterans Michigan Veterans Preference Act
Requires that honorably discharged veterans (who meet certain criteria) are given preference for appointment and employment with public employers.
The Act provides that the veteran must be qualified for the job, be of “good moral character,” and a Michigan resident for at least two years
The Act does not establish or define the strength of the “preference”
Michigan Court of Appeals has said that the veteran’s qualifications do not need to be “equal” to non-veteran in order to trigger the preference, but veteran’s qualifications must be at least comparable
Veterans Vietnam Era Veterans’ Readjustment Assistance
Act (VEVRAA) New Rules: New rules are designed to strengthen affirmative action
requirements related to the recruitment and hiring of protected veterans, including disabled veterans
Enforced by the OFCCP Protections are not limited to Vietnam era veterans,
protects: “Special Disabled Veterans” Recently Separated Veterans (3 years or less); and Those who served on active duty during a war
Veterans Vietnam Era Veterans’ Readjustment Assistance
Act (VEVRAA) New Rules: Set a benchmark for measuring success in recruiting
and hiring veterans by adopting affirmative action goal Invite voluntary self-identification (remember earlier
ADA warning) Retain, measure, and report data regarding the
number of veterans that apply and number that are hired
Find and use resources to reach out to and recruit protected veterans
Brad TaorminaAttorney at Law
Hall, Render, Killian, Heath & Lyman, [email protected]
DISCLAIMER: This information is not intended as legal advice or as a substitute for the particularized advice of your own counsel and should not be relied upon as such, as the advice appropriate for you will be dependent upon the particular facts and circumstances of your situation. The transmission or receipt of this information does not create an attorney-client relationship.