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An employee asks his supervisor for time off to have surgery on an ailing shoulder that he claims he hurt on the job several months ago. He tried to work through the pain, but couldn’t tolerate it any longer. But instead of granting time off for surgery and starting the interactive accommodations process the ADA requires, he’s fired. Is this an ADA violation? According to EEOC, yes.

For the 2nd time since 2009, Product Fabricators is being charged with disability discrimination. According to an EEOC complaint, the sheet metal manufacturer fired an injured employee instead of accommodating him; a move EEOC alleges was retaliation for the employee’s earlier participation in another EEOC disability discrimination investigation. It did so only after questioning him about information he had provided to the EEOC in an earlier investigation. That inquiry was looking into allegations that the company violated the ADA by requiring another employee to reveal information about prescription drug use and then regarding him as disabled. EEOC investigators interviewed this latter employee in that case. When asked about time off for surgery, the EEOC claims, Product Fabricators officials demanded that he sign a prepared statement concerning the interview. Then it allegedly fired him at the end of his shift.

A reminder to employers: Interfering with an EEOC investigation increases your risk. Any move seen as discouraging an employee from participating in an EEOC investigation is the civil equivalent of witness tampering.

Shelley

This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.

Dogs are amazing animals. That’s why around 39% of all households around the world have at least one. But for people with disabilities, they are more than just wonderful pets. Dogs enhance their lives in extraordinary ways. They guide an individual with impaired vision. They alert an individual with impaired hearing to various sounds and intruders. They pull a wheelchair, help someone get up from a fall or retrieve dropped items. They can even alert and protect a person who is having a seizure, remind a person with mental illness to take prescribed medications, and calm a person with Post Traumatic Stress Disorder (PTSD) during an anxiety attack. Therefore, it’s understandable that this remarkable animal must be allowed to stay by its owner’s side in both the workplace (as a reasonable accommodation) & marketplace (as a modification of policies). Service animals are not pets; they are working.

Recent changes to the ADA clarifies that a service animal is a dog that is individually trained to do work or perform tasks for a person with a disability. In rare situations, a miniature horse may also qualify, but I’ll address that in a separate blog). Service animals must be harnessed, leashed, or tethered, unless these devices interfere with the service animal’s work (retrieving a dropped item) or the individual’s disability prevents using these devices. In that case, the individual must maintain control of the animal through voice, signal, or other effective controls.

Lawyers of course, should know this. Yet, a lawsuit was recently filed by the U.S. Attorney’s Office for the Southern District of New York against a Law Firm for twice refusing to let a client enter its law offices with her service dog. This clearly violates the ADA.

When it is not obvious what service an animal provides, only two questions may be asked: (1) is the dog a service animal required because of a disability, and (2) what work or task has the dog been trained to perform. Staff cannot ask about the person’s disability, require medical documentation, require a special identification card or training documentation for the dog, or ask that the dog demonstrate its ability to perform the work or task.

OK, you’re concerned that others may have allergies or fear dogs. These are not valid reasons for denying access or refusing service or employment to people using service animals. When a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, for example, in a school classroom or at the workplace, they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility. It’s important to engage in the interactive process to figure out a reasonable way to resolve the issue.

Our marketplace is diverse. People in our workforce and workspace are increasingly diverse. Diversity may mean that we don’t share similar views about the role dogs can play in a person’s life. When appropriate, make sure your company’s materials and orientation/training programs address why others may see dogs in their space.

Shelley

This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.

Employers are reminded that the obligation to provide reasonable accommodation is not limited to existing employees. Employers are also required to provide accommodations in order to give applicants an equal opportunity to apply for open positions. A large staffing company found this out the hard way when EEOC filed a lawsuit because the company unlawfully refused to accommodate an applicant with a disability who needed an accommodation during the hiring process and subsequently denied him employment because of his disability.

The applicant, who has end-stage renal disease, a condition in which his kidneys no longer function and he is not able to urinate, applied for a shift supervisor position at G2 Secure Staff’s facility at Raleigh-Durham International Airport in Raleigh, N.C. He successfully completed all of the requirements for obtaining the position with the exception of a drug test. Due to the fact that he’s not able to urinate, he asked if he could take the drug test using a hair sample rather than a urinalysis as an accommodation for his disability. However, the company failed to provide him the opportunity to take the drug test by hair sample or any other means that would have enabled him to be hired into the position he sought. Consequently, he was denied the job.

This ADA violation will cost the company $30,000 and an agreement to revise its anti-discrimination policy to include, among other things, a procedure for requesting a reasonable accommodation under the ADA and an explanation of an employer’s obligation to engage in the interactive process when an employee makes a request for a reasonable accommodation. The settlement also requires the company to post a notice about the settlement and conduct training on its obligations under the ADA.

In this case, the employer could have easily made the requested accommodation and avoided this entire process. This case shows that the EEOC will vigorously prosecute cases where the employer refuses to provide a reasonable accommodation that would enable a person, who’s qualified to do the job, to be hired.

Shelley

This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.

In an ironic twist, The Scooter Store, which serves people with limited mobility, has been sued by the U.S. Equal Employment Opportunity Commission (EEOC) for disability discrimination. According to EEOC, the Texas-based retailer refused to accommodate an employee’s request for a temporary leave due to a knee injury and then fired him from a New York store. EEOC claims that the employee informed the company that he was incapacitated due to psoriatic arthritis and required a leave for treatment. But his request was denied, and he was let go, purportedly for job abandonment. Disability discrimination violates the American with Disabilities Act. Remember, employers are obligated to engage in an interactive process with employees and provide reasonable accommodations for their disabilities unless doing so would create an undue hardship on the company. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive or disruptive, or those that would fundamentally alter the nature or operation of the business.

Shelley

This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.

You fire a worker who has consistently failed to operate his forklift in a safe manner, despite repeated warnings and training. What you don’t know is that a protected medical condition is behind his poor performance – which means you have a duty to explore potential workplace supports (reasonable accommodation) instead of showing him the door. The mistake is understandable…but it’s one that could be costly to your company. It’s always a good rule of thumb to talk with the employee about his/her unacceptable performance and provide an opportunity for him/her to disclose disability and the need for an accommodation that would get the job done in an acceptable and safe manner (interactive process). If the employee doesn’t disclose a disability, and provides no reason as to why the job performance is unacceptable, termination is then possible. Remember to document everything discussed and actions taken every time you meet with this employee as evidence of your good faith efforts. Remember, if you are concerned that an employee might pose a direct threat to the safety of himself of others in the workplace, you must conduct an individualized assessment and show that there is a significant risk of substantial harm to the health or safety of the disabled individual or others. You must also be able to demonstrate that the threat cannot be eliminated or reduced by reasonable accommodation. And finally, your determination that an individual poses a direct threat must be based on reasonable medical judgment that relies on the most current medical knowledge available. Your assessment cannot be based on myths and fears of what “might” happen.

Shelley

This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.

A good business practice

You might want to consider performing a self audit before making another employment decision, such as hiring, promoting, or firing. Have you provided a reasonable accommodation, if needed? Did you make your decision by having a discussion with the applicant and/or employee (otherwise known as the “interactive process”)? Did you document your decision? Is this information kept strictly confidential and separate from the employee’s personnel file? Performing self audits of your company’s employment practices is a good business practice. It helps you reduce potential employment barriers. It also helps you provide an equal opportunity for your applicants and employees with disabilities.

Did you know that Springboard offers a comprehensive corporate assessment and gap analysis? Contact us today at 973-813-7260 to learn more.

Shelley

This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.

Disability Discrimination will cost a company $135,000 for unlawful termination due to medical conditions.

If your employee is performing a new job satisfactory for several weeks, can you then fire that employee when s/he makes a request for an accommodation? EEOC recently sued a large industrial company that provides direct-hire construction services to traditional industrial markets, when the employee requested an accommodation for his physical impairments, which included a leg amputation. Allegedly, the company also refused to let the employee to return to work unless he provided medical documentation that he could perform his job duties without medical restrictions.

What’s the problem here? First, the company must engage in good-faith discussions about the accommodations an employee requests. This informal discussion should explore whether the requested accommodation is “reasonable” and if not, are there any other types of accommodations that would be reasonable & not cause an “undue hardship” on the company. Secondly, medical documentation can only be required if the need for the accommodation is not evident. I don’t know all the facts in this case, especially what the employee’s job is, but surely a leg amputation is an obvious physical impairment and depending on the job, it might be fairly obvious why the particular accommodation was requested. And third, document every decision and action taken in order to have a paper trail if a complaint is filed. This is one of your best ways of showing that your actions were not intentional discrimination, but rather, based on business necessity.

In addition to the monetary settlement, the company will provide its employees, supervisors, and managers with annual training for two years on the Americans with Disabilities Act, and to make periodic reports to the EEOC. If you haven’t done so already, now is the time to start the new year off right and schedule your ADA training for your employees, supervisors and managers.

Shelley

This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.

In September 2011, the percentage of people with disabilities in the labor force was 21.1. By comparison, the percentage of persons with no disability in the labor force was 69.7. In September 2011, the unemployment rate for those with disabilities was 16.1 percent, compared with 8.5 percent for persons with no disability, not seasonally adjusted. Research supports and companies report that people with disabilities are loyal & productive employees who can also provide valuable insight into the marketplace served by your company.

Shelley

This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.

Did you know…In fiscal year 2010, private sector workplace discrimination charge filings with the EEOC hit an unprecedented level of 99,922, which included a record-high number of disability charges (25,165) – an increase of 17.3 percent in disability charges over the prior fiscal year. Now is a good time to review your company’s policies, practices & procedures to make sure they do not unintentionally discriminate against your employees with disabilities. Remember: if an employee is having performance issues, but hasn’t asked for any workplace supports, it’s always wise to talk about your expectations and ask if there’s any reason why the employee isn’t meeting your expectations.

Shelley

This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.