The Equal Employment Opportunity Commission (EEOC) recently issued new guidelines on accommodating disabilities under the Americans with Disabilities Act (ADA).
These guidelines, available on the EEOCs Web site (www.eeoc.gov), offer direction on the kinds of accommodations employers must make for disabled employees. While these guidelines do not have the force of law, the EEOC will follow them when processing charges of discrimination under the ADA. The following are highlights.
In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities. The need for accommodation may arise at the pre-employment stage, and it applies not only to employment, but also to benefits and privileges associated with employment (for example, access to training and company-sponsored social functions).
Typical accommodations include making facilities accessible, job restructuring, part-time and modified work schedules, leaves of absence and reassignment to vacant positions.
Providing a reasonable accommodation is an interactive process. While an employee has the primary responsibility for initiating the process by requesting an accommodation, employers are expected and encouraged to ask questions about the type of accommodation desired or the length of time for which the accommodation is needed.
An employer also may request medical information for use in evaluating a request for an accommodation. An employer who is found to have caused the interactive process to break down is likely to be charged with a violation of the ADA for failing to reasonably accommodate the underlying disability.
The central issue is whether an employer has provided a reasonable accommodation, not whether the employer has offered the best or most expensive accommodation, and not whether the employer has offered the particular accommodation favored or requested by the disabled employee. An accommodation must also be effective, meaning that it will enable the disabled individual to perform the essential functions of his or her job.
An employer is not, however, required to eliminate essential functions of a job as a reasonable accommodation. But it may be required to eliminate or reallocate marginal functions.
While a leave of absence may be a reasonable accommodation, an employer doesnt have to grant a leave if another reasonable accommodation would eliminate the need for the leave and permit the employee to do the essential functions of the job. AIf leave is provided, an employer doesnt need to provide paid leave beyond that which it generally provides to its employees.
Certain portions of the guidelines are controversial they adopt positions that appear to contradict or expand existing judicial interpretations of the ADA. Examples include issues such as whether employees may be automatically terminated after they are on leave for a maximum period of time, whether an employer must hold an employees job open as a reasonable accommodation, whether an employer may take into consideration time missed during a leave in evaluating an employees performance (for example, discipline or compensation), the circumstances under which working at home may be a reasonable accommodation, and the extent of both an employees rights and an employers obligation in considering reassignment as an accommodation. Resolution of these potential conflicts must, unfortunately, await further EEOC guidance or court decisions.
Kathleen J. Davies
Medical test troubles
Following doctors orders leads to lawsuit.A woman who took four days off from work on doctors orders pending results of medical tests for stomach ailments should not have been fired, even though the problems eventually were diagnosed as minor conditions and that leave put her over the permissible limit of her employers no-fault absenteeism policy. The U.S. Court of Appeals for the 8th Circuit Court said that the time should have instead counted as leave under the Family and Medical Leave Act (FMLA).
The trial court had previously ruled in favor of the employer, finding that the employees leave was not protected because she did not have a serious health condition. After the initial ruling, the U.S. Department of Labor issued an opinion letter stating that minor ailments such as ulcers could constitute a serious health condition if they resulted in an incapacity lasting three consecutive calendar days and requiring continuing treatment by a health care provider.
The Court of Appeals held that, in light of this opinion letter, an employee who is ordered by a physician not to work is incapacitated, and therefore unable to work. On remand from the Court of Appeals, the trial court determined that the employees condition did qualify under FMLA.
The government has been attempting to shed light on the gray areas of this law since it was passed in 1993, issuing guidelines, some of which have reversed previous guidelines. In the meantime, courts make rulings that sometimes contradict the guidelines and overturn earlier precedents.
William E. Adams
Discriminate and face personal liability
Supervisors and managers can be held personally liable for discrimination
A Pennsylvania trial court, in a case of so-called first impression, has ruled that supervisors and managers can be held personally liable for discrimination under the Pennsylvania Human Relations Act. The court denied a summary judgment motion filed by two of the plaintiffs former employees who were named as individual defendants in the action.
While federal courts have uniformly held that no individual liability exists under federal employment discrimination laws, the court in Santarelli vs. National Book Co. held that the Pennsylvania law differs from federal law in that it makes it is unlawful for any person to aid, abet, incite, compel or coerce discriminatory practices. Therefore, individual supervisors and managers are covered by the Pennsylvania act if they engage in such practices.
While the prospect of individual liability may deter supervisors and managers from engaging in discriminatory conduct, business owners also should have a clear anti-discrimination policy, provide training for all employees, and make sure all personnel understand federal and state anti-discrimination laws and the consequences for failure to comply with the law.
William A. Adams
Law Briefs is written by attorneys from Eckert Seamans Cherin & Mellott, LLC, a national law firm based in Pittsburgh.