Archive for the 'ADA' Category

YOU’RE TAKING WHAT? The EEOC, the ADA and Tests for Legal Drugs.

Anyone who has heard me speak about the Americans with Disabilities Act knows my take on the issue of drug testing and alcohol testing of current employees. Over and over and over I have said that you can test for illegal drugs whenever you want but you are limited on when you can test an employee for alcohol.  The EEOC just reminded us that there are limits on when you can test for legal drugs, too.

Why, you might ask, is this true?

Well, a rule under the ADA says you can only conduct a medical examination of a current employee if the inquiry is “job related and consistent with business necessity.”  It says so right in the EEOC’s Enforcement Guidance on Disability Related Inquiries and Medical Examinations.

A “medical examination,” according to the guidance, “is a procedure or test that seeks information about an individual’s physical or mental impairments or health.”  That includes “blood, urine, and breath analyses to check for alcohol use; ….”  And then the guidance goes on to say: There are a number of procedures and tests employers may require that generally are not considered medical examinations, including:

  • Tests to determine the current illegal use of drugs ….”

And while it does not mention that a medical examination also includes a test for legal drugs taken in accordance with a prescription, that seems obvious to me and probably to you, too.  Come on, if you can’t test for alcohol without a reason, why on Earth would you be able to test for prescription medication?

This all seems pretty simple to me. In fact it seems so simple that I often make a bit of a joke when I am speaking on the topic:

Me:  “You can test for illegal drugs whenever you want but you have to have a business reason to test for alcohol.”

 Participant:  “Why is that?”

Me:  “I’m not sure, but could it be that Congress is full of drinkers and not drug users?”

Works better when I am actually speaking, I realize, but it usually gets a laugh or two.

Still,  this whole issue of drug testing is no laughing matter. And it seems I may have been wrong about how simple this is. Or maybe I just didn’t take into consideration the fact that when we are talking about drug testing we are talking about testing for “illegal drugs,” not legal drugs being taken according to a prescription.

Last week Dura Automotive Systems entered into a settlement agreement with the EEOC to pay $750,000 to settle an ADA suit.  According to the EEOC press release:

Dura Automotive Systems, Inc. tested all of its Lawrenceburg, Tenn., plant employees in May 2007 for 12 substances, including certain legally prescribed drugs, in violation of the ADA.  Five of the drugs tested for were illegal controlled substances, the EEOC said, but the other seven were legal medications that were lawfully prescribed for the individuals taking them.

Further, the EEOC alleged that Dura required those employees who tested positive for legally prescribed medications to disclose the medical conditions for which they were taking prescription medications, and made it a condition of employment that the employees cease taking their prescription medications, without any evidence that the medications were affecting the employees’ job performances.  According to the EEOC, Dura then suspended employees until they stopped taking their prescription medications, and fired those who were unable to perform their job duties without the benefit of their prescription medications.  Moreover, Dura conducted the drug tests in such a manner as to disclose to its entire work force the identities of those who tested positive.

Oops.  Can’t do that.

So where did Dura Automotive trip up?  Well, you can test for legal drugs but only if the test is job related and justified by business necessity.  That is kind of hard to prove when you test all of your employees.  Next, if an employee has a prescription for a legal drug, you can’t ask them what underlying medical condition they have that necessitates taking the drug.  That would be an impermissible medical inquiry under the ADA,  Also, you can’t  make an employee stop taking a legally prescribed medication unless you can prove that taking the drug actually affects the employee’s ability to do their job. And finally you can’t conduct your drug test in such a way that everyone knows everyone else’s results.  Disclosing confidential medical information is a violation of the ADA too.

So before you decide to test your entire workforce for drugs, why don’t you give one of the labor lawyers at WNJ a call? It will probably cost you less than $750,000.

Man, My Cell Bill Is Going Up Again!

What on earth does that headline have to do with employment law? That’s what you are thinking, isn’t it? Sure it is. Give me a second, I’ll tell you.

We talk a fair amount on this blog about the Americans with Disabilities Act (ADA) and reasonable accommodations. Apart from it being one of the most difficult federal statutes for employers to work with, I happen to have a bit of a special interest in the topic. So, when something about the ADA crosses my desk I tend to stop what I am doing and at least glance at it.  So today when I got a Tweet (yes, you can find me on Twitter at @ZoEmploymentLaw), I stopped and I read it. (By the way, a shout out to the Ohio Employer’s Law Blog for the nice post on this issue).

Here is the headline on the Equal Employment Opportunity Commission’s (EEOC’s) press release: Verizon to Pay $20 Million to Settle Nationwide EEOC Disability Suit.

Sort of catches your attention, doesn’t it? So, what happened? According to the EEOC, Verizon maintained a “no fault attendance” program. Under that program, “if an employee accumulated a designated number of ‘chargeable absences,’ Verizon placed the employee on a disciplinary step which could ultimately result in more serious disciplinary consequences, including termination.” The EEOC took the position that Verizon failed to provide reasonable accommodations for people with disabilities which should have included making exceptions to this no-fault attendance plan for  individuals whose “chargeable absences” were caused by their disabilities.

According to the EEOC press release: “In addition to the $20 million in monetary relief, the three-year decree includes injunctions against engaging in any discrimination or retaliation based on disability, and requires the company to revise its attendance plans, policies and ADA policy to include reasonable accommodations for persons with disabilities, including excusing certain absences. Verizon will provide mandatory periodic training on the ADA to employees primarily responsible for administering Verizon’s attendance plans. The company will report to the EEOC about all employee complaints of disability discrimination relating to the attendance policy and about Verizon’s compliance with the consent decree. The company also agreed to post a notice about the settlement. Finally, Verizon will appoint an internal consent decree monitor to ensure its compliance. The settlement applies to certain Verizon wireline operations nationwide which employ union-represented employees.”

These allegations and this settlement highlight an important difference in the ADA that we all know about but don’t talk about very often. Unlike say, Title VII, which requires that all employee’s are treated equally, the ADA actually requires employers to treat persons with disabilities different than they may treat non-disabled employees. In short, employers must provide reasonable accommodations for qualified individuals with disabilities.  Now a lot of my colleagues and I have always taken the position that regular attendance is an essential job function and so under the ADA employer’s were not required to “reallocate” as it were attendance as an accommodation.  Given this settlement I’m not quite so sure about that anymore.  Granted this is just a settlement, not a judgment of a court, so it is not the law.  But it sure gives us notice of how the EEOC feels about these issues.  In short, if you have an employee with a known disability, you might want to pause and think about it before you fire the employee under your no fault attendance policy.

You can see the entire press release here. You can get help with your ADA questions and concerns here.

HAPPY ANNIVERSARY?

Did you know that today is the 20th Anniversary of the signing of the Americans with Disabilities Act? It is. On July 26, 1990 President George H. W. Bush (that is the first President Bush for those of you like me who are a bit date-challenged) signed the largely bi-partisan supported bill into law. When the President signed the bill he “borrowed” from President Reagan’s Berlin Wall speech from a few years earlier, Bush said, ”Let the shameful wall of exclusion finally come tumbling down.” http://www.cnn.com/2010/LIVING/07/26/ada.history/ So, to celebrate the anniversary of the ADA, you can find a ton of news articles and most of them seem to have a couple of things in common: first, they focus mostly on the public accommodation part of the ADA, you know, things like curb cuts and Braille in elevators, not the employment part of the ADA that we deal with every day; and second, they seem to say we have come a long way, and we have a long way to go.  Of course, we are going to talk about the employment part of the law, the part enforced by the EEOC.

In its statement “The Americans With Disabilities Act 20th Anniversary” the EEOC says there is a “growing need” for the ADA and points to charge statistics to prove it:  :

  • 1993: 15,274 charges of discrimination filed with EEOC, which obtained $15,496,811 in relief for 1,851 people though its administrative process;
  • 2009: 21,451 charges of discrimination filed, roughly a 30% increase. EEOC got $67,826,112 in relief for 3,238 people;
  • From 1993 to 2009, ADA charges rose from 17.4% of all charges filed with the EEOC to 23% of all charges filed as ADA charges became a greater part of the EEOC’s workload;
  • During the same period, the EEOC filed 874 lawsuits claiming violations of the ADA, collecting a total of $86,633,804 for victims of disability discrimination.

See http://www.eeoc.gov/eeoc/history/45th/ada20/index.cfm

You know what struck me the most about this? Take a look at the first 2 bullet points: 1993, 15,274 charges only 1,851 people got money. 2009, 21,451 charges and relief for 3,283 people. Now if my math is right (and it may not be, I went to Law School to avoid math), that means in 2009 (we’ll just stick with 2009), 18,168 charges were filed and the people filling them got no relief! That means that 84% of the charges were . . . what?  Frivolous?  So let me ask you this. Does that mean the employer’s didn’t have to spend time and effort responding to those charges? Did they get any monetary relief from the people who frivolously filed them? Nope and Nope. And things won’t get any better with the ADAAA.  Is that really a “growing need” for the ADA and the expanding definition of who is and who is not really disabled?

Now before you get the wrong idea, I am a full fledged 100% supporter of the ADA.  Those of you that have read any of my stuff know why. What I am not a supporter of is people who are not disabled trying to take advantage of a law designed to help people who are. Nor am I a supporter of a government agency making it easier for them to do that. All that does is cost business money and makes it harder for the people who really are disabled to get the protections the law affords.  Now I will be the first to admit that I may be interpreting these EEOC statistics wrong, . . . but I don’t think so.

So, Happy Anniversary.

NO MORE MONKEY BUSINESS

“Service animals are animals that are individually trained to perform tasks for people with disabilities – such as guiding people who are blind, alerting people who are deaf, pulling wheelchairs, alerting and protecting a person who is having a seizure, or performing other special tasks. Service animals are working animals, not pets.”

U.S. Department of Justice, Civil Rights Division, Disability Rights Section., ADA Business Brief, http://www.ada.gov/business.htm#Anchor-ADA-11481

Just so you know, the Justice Department is the government agency tasked with enforcing Title III of the ADA. Title III deals with, among other things, access to public places. So, when the Justice Department defines what a service animal is, it has an impact on what animal you can bring with you into the store, theater, barber shop or on the bus. It might also spill over into the workplace, because the EEOC has not defined service animal but it is clear that bringing a service animal to work just might be a reasonable accommodation.

“So what?” you say, Bob gets to bring his dog to work. No one can have a problem with that right?  Not so fast my friend. What if Bob wants to bring his ferret to work or his boa constrictor or his monkey?  “Never happen!” you say! Want to bet.  In just the last couple of months there have been news stories about people denied access to public places with just these kinds of animals.  You can see them at:  http://www.wltx.com/news/story.aspx?storyid=79946&catid=35 (ferret in the mall); http://www.tdn.com/articles/2009/10/19/breaking_news/doc4adc801305644061734709.txt (5 ft. boa constrictor in Burger King); http://www.news-leader.com/article/2009910230358(Monkey in Wal-Mart). 

 So, in 2008 the DOJ announced plans to modify the definition of what can and can’t be a service animal:

 Proposed revisions published in the Federal Register (PDF) would exclude not only snakes and other reptiles, but rabbits, farm animals, amphibians, ferrets, rodents and wild animals including monkeys born in captivity, according to the newspaper. They would also eliminate from the definition of service animal creatures who simply provide emotional support, comfort or companionship.

 http://www.abajournal.com/news/isboaconstrictoraserviceanimalproposeddojstandardsaysno/

But, after the DOJ got pummeled with angry comments, the Obama administration delayed implementation of the proposed regulations until its team of civil rights experts could look at the issue. So?  Is it possible that some bureaucrat may decide that I have to eat my linguine next to a monkey? Or worse, that the guy in the next cubicle can bring his service spider to work if some doctor is willing to certify that it provides him comfort? You may find it strange that a big strapping guy like me is afraid of spiders, but I am terrified of them and frankly, monkeys creep me out. I’d rather not have either sitting next to me at work or while I watch a movie or while I eat.  And I don’t want to have to explain to an angry group of employees why Bill gets to bring his boa constrictor to work. What happens to Sally’s ferret when that sucker gets loose in the office?  Nothing but trouble.

 I have just one thing to say to our friends and neighbors in D.C.  Really, no more monkey business.

$6.2mil says 12 may not be enough

Back in August we told you about an EEOC case against UPS for for violating the ADA and terminating an employee after she had used up her 12 month leave entitlement.  See http://negotiumlex.wnj.com/?p=45  Well, the EEOC is at it again.  A couple of days ago the EEOC issued a press release titled:  SEARS, ROEBUCK TO PAY $6.2 MILLION FOR DISABILITY BIAS   You can see the press release here http://www.eeoc.gov/press/9-29-09.html

The EEOC had accused Sears of maintaining an “inflexible workers’ compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA.” 

Also according to the press release, “Regional Attorney John Hendrickson of the EEOC Chicago District Office said pre-trial discovery in the lawsuit revealed that hundreds of other employees who had taken workers’ compensation leave were also terminated by Sears without seriously considering reasonable accommodations to return them to work while they were on leave, or seriously considering whether a brief extension of their leave would make their return possible.”

The settlement, according to the EEOC is the largest settlementof an EEOC ADA case in the statutes’ history.

Now don’t forget, most courts and even the EEOC itself continue to maintain that you do not need to provide “indefinite leave” as a reasonable accommodation.  See the EEOC Fact Sheet on “Applying Performance and Conduct Standards to Employees with Disabilities” (2008) at Q. 21 www.eeoc.gov  So it looks like you don’t have to keep employees on the payroll forever.

But, what is indefinite and what is not?  Beats me, but I’ll try:   If the employee needs an extra 2 weeks the EEOC will presumably say that is not indefinite.  An employee’s doctor saying we don’t know when the employee will be back if ever, probably is.

I know what you are saying, “Nice news but other than scaring the heck out of me what do I take from this?”  Well first thing we should do is take a look at the language the Regional Attorney for the EEOC used.  He said, Sears failed to “seriously consider” reasonable accommodation and failed to “seriously consider” whether a brief extension was possible.  So, it seems to me here is what is really important and what you should take from all of this:  ENGAGE IN THE INTERACTIVE PROCESS WITH EVERY EMPLOYEE WHO REQUESTS AN ACCOMMODATION.  Once you have done that then you need to make an individualized determination as a result of engaging in the interactive process for every request for leave as an accommodation.  Don’t treat every request exactly the same, it can only get you in trouble.

IS 12 MONTHS ENOUGH . . . ?

Or does your leave policy violate the ADA?

Most employers that even have leave policies have some limit to those policies.  Sometimes its 6 months and often it is 12 months.  But generally, once an employee has exceed whatever your maximum is, they’re fired.  Well, the EEOC, it seems, does not like this one little bit.  In fact, they have filed suit against UPS in Federal Court in Illinois for this very thing.  (See EEOC v. United Parcel Serv. Inc., N.D. Ill., No. 09 C 5291).  Seems an employee with MS took a 12 month leave of absence.  She returned to work, according to UPS, without restrictions for 18 days and then, went out on leave again.  Not surprisingly, UPS terminated her employment for exceeding its 12 month leave policy.

Well, the EEOC thinks that violates the ADA.  According to the EEOC a flat 12 month leave program like this one “negates” the interactive process contemplated under the ADA. 

UPS says it is going to fight this one out.  We’ll keep an eye on this case, it should be interesting.