Tourette Syndrome Association 2014 National Conference Know Your Rights : Laws in the Workplace James A. Merklinger, Esq. March 21, 2014 Agencies and Policies U.S. Equal Employment Opportunity Commission (EEOC) administers: Americans with Disabilities Act of 1990 (ADA) Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) Rehabilitation Act of 1973 U.S. Department of Labor administers: Family and Medical Leave Act of 1993 (FMLA) State agencies administer individual state policies E.g., California: Fair Employment and Housing Commission (FEHC) administers the Fair Employment and Housing Act (FEHA) Americans with Disabilities Act (ADA) Protects individuals with impairment that substantially limits a major life activity. Requires that employers reasonably accommodate to allow employees to perform the essential functions of their jobs. Employers have an affirmative duty to engage in the interactive process with the employee to determine eligibility under the ADA and, if the employee is qualified, to discuss with the employee options for an accommodation. Adult Track, March 21 1 Tourette Syndrome Association 2014 National Conference The ADA protects individuals with impairment that substantially limits a major life activity. “Substantially limits” = “Materially restricts” “Major life activity” Seeing Caring for oneself Hearing Performing manual tasks Walking Eating Standing Sleeping Speaking Lifting Breathing Bending Reading Learning Concentrating Reading Working Thinking Communicating Impairments “Limits a major life activity” includes “physical or mental impairments” to major bodily functions: Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin and endocrine. Any mental or psychological disorder, such as: intellectual disability (formerly termed mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities. Determining a Limitation The determination of “substantially limits” will be made without mitigating measures: Medication, medical supplies, equipment, or appliances Low-vision devices (not ordinary eyeglasses or contact lenses) Prosthetics – limbs and devices, hearing aids, and implantable hearing devices Mobility devices – wheelchairs, walkers, etc. Oxygen therapy equipment and supplies Assistive technology Reasonable accommodations or auxiliary aids or services – interpreters or readers Learned behavioral or adaptive neurological modifications The ADA covers an impairment that would limit a major life activity if it were active – even if it is currently in remission. Examples: multiple sclerosis, lupus, cancer, epilepsy, and seizure disorders Adult Track, March 21 2 Tourette Syndrome Association 2014 National Conference Accommodation Reasonable Accommodation Duty It is unlawful for an employer to fail to make a reasonable accommodation for the known disability of an applicant or employee, unless accommodation would be an undue hardship for the employer. Interactive Process Duty It is unlawful for an employer to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations in response to a request for accommodation by an employee/applicant with a known disability or medical condition. Requesting Accommodation Employees may use “plain English” to communicate the need for an accommodation – they do not need to mention the ADA or the phrase “reasonable accommodation.” For example, an employee asks for time off because he is “stressed and depressed.” This likely would include enough information to put the employer on notice that the employee is requesting an accommodation. If the employee’s need for accommodation is not obvious, however, the employer may ask for reasonable documentation of the disability and accommodation needs. Contrast: An employee asks for a few days off to rest after a major project. The statement would not typically be enough to put the employer on notice that the need for time off is related too a physical or mental condition. Reasonable accommodations not required If employer is unaware of the need If providing the accommodation would cause undue hardship Employers are free to choose accommodations and can provide those less expensive or easier to obtain Undue Hardship The following is a list of factors to help determine if the requested accommodation would pose an undue hardship on the organization: The nature and net cost of the accommodation. The overall financial resources of the facility, the number of persons employed, and the effect on expenses and resources. The overall financial resources of the employer, the size of the business, number of employees and the number, type, and location of facilities. The type of operations of the employer. The impact of the accommodation on the operation of the facility, including the impact on the ability of other employees to perform their duties and on the ability to conduct business. Adult Track, March 21 3 Tourette Syndrome Association 2014 National Conference The Interactive Process What are the requirements for the interactive process? Employer must analyze job functions to establish essential and non- essential job tasks Employer and employee must discuss precise limitations Employer must consider the requested accommodation(s) Employer must explore all potential accommodations – modifying the employee’s job, reassignment, transfer to a vacant position, leave, etc., including options not specifically requested by the employee Employer must offer an alternative reasonable and effective accommodation if it rejects the requested accommodation Employer must take the obligation seriously Employee (and employer) should keep detailed records of communications and efforts to find an accommodation Examples of Reasonable Accommodations Disability: Deaf & Hearing Impaired Disability: Mobility Impairments Possible accommodations: use of amplification devices; installations of telecommunications devices for the deaf (TDD); publication of written announcements; policy accommodating lip readers; use visual cues for signage Possible accommodations: replace existing hardware and equipment; make necessary structural changes to eliminate barriers; install ramps; widen doorways Disability: Difficulty Handling Stress and Emotions Possible accommodations: provide praise and positive reinforcement; refer to counseling and employee assistance programs; allow telephone calls during work hours to doctors and others for needed support; provide sensitivity training to coworkers Examples of Employers Failing to Provide Reasonable Accommodation Ekstrand v. School Dist. of Somerset, W.D. Wis, No, 08-cv-193, verdict Oct. 5, 2010: Jury awarded $2 million to teacher who suffered from seasonal affective disorder (SAD). Teacher had worked for the school district for five years when she was transferred to a room without windows. She requested transfer to an exterior room because treatment for SAD requires exposure to natural light. Despite an empty exterior room and a co-worker who offered to change rooms, the school district denied the teacher’s request t]o change rooms. Gambini v. Total Renal Care, Inc. (9th Cir. 2007) 486 F. 3d 1087: Ninth Circuit ruled that an employer violated the ADA by discharging an employee whose misconduct -- cursing, shouting, and throwing papers at her supervisors -was caused by her bipolar disability. “ Conduct resulting from the disability...is part of the disability and not a separate basis for termination.” EEOC v. Sears, Roebuck & Co., N.D. Ill. No. 04 C 7282 (2010): $6.2M settlement for violating the ADA by maintaining an inflexible workers’ compensation leave exhaustion policy and terminating employees instead of providing them with reasonable accommodations for their disabilities. Adult Track, March 21 4 Tourette Syndrome Association 2014 National Conference Accommodation Refusal What if an employee will not accept a proposed accommodation? An employer cannot force an employee to accept a reasonable accommodation. An employee who does not accept an accommodation and, as a result, cannot perform the job, cannot meet conduct or performance standards or poses a direct threat, will not be considered “qualified.” Attendance Regular attendance is usually an “essential function” of the job. Possible accommodations for attendance issues include: Flexible schedule Modified break schedule Leave for medical attention Work from home When can an employer ask for disability-related information? Preemployment? No disability related questions or exams permitted before making an offer of employment, unless an applicant asks for an accommodation and the need for one is not obvious. After making employment offer? The employer may require a medical exam or psychiatric exam or ask questions related to disability but only if all entering employees in the same job category are subject to the same exam/questions. Under the ADA, inquiries and exams do not need to be job related. Adult Track, March 21 5 Tourette Syndrome Association 2014 National Conference When can an employer ask for disability-related information? During employment? Disability related questions or exams are permissible only if job related and consistent with business necessity. Can employers make disability-related inquiries or require a medical examination when an employee who has been on leave for medical condition seeks to return to work? Yes, if the employer has a reasonable belief that an employee’s present ability to perform essential job functions will be impaired by a medical condition or that s/he will pose a direct threat due to a medical condition. Any inquiries or examination must be limited in scope to what is needed to make an assessment of the employee’s ability to work. In general, the test must be job-related and necessary for business reasons. Filing a charge with the EEOC If an employee experiences an adverse action prohibited by the ADA, such as failure to hire, termination, demotion, placement on involuntary leave, exclusion for failure to meet a qualification standard, harassment, or denial of any other term, condition, or privilege of employment – based on his/her impairment or on an impairment the employer believes the individual has, the employee may file a charge with the EEOC. Employees are required to file a charge with the EEOC before they can proceed to court. Average life of a charge of discrimination is approx. 182 days. EEOC has subpoena power if employer is not responsive. Filing a charge with the EEOC Process 1. Employee files charge. 2. Parties are offered internal EEOC mediation. 3. Employer notified and requested to provide information to the investigator. Position statement – employer’s response to the charge Request for Information (RFI) – request for supplemental documents and evidence (i.e. personnel files, comparator data, etc.) 4. Investigator proceeds to investigate the charge. 5. Investigator may request an “on-site” investigation and/or witness interviews. 6. Determination will be made by the agency: “Cause” to believe discrimination occurred. Unable to determine whether discrimination occurred. If “cause” is found, investigator will attempt to conciliate the charge. If “cause” is not found, charge will be dismissed. Once the agency has completed its process, a Dismissal and Notice of Rights letter will be issued. Complainant has 90 days to file litigation. Adult Track, March 21 6 Tourette Syndrome Association 2014 National Conference Retaliation It is unlawful to take an adverse action against someone because (1) he/she opposed a practice that he/she reasonably and in good faith believed to be an unlawful, discriminatory practice participated in the statutory complaint process (i.e. filing a complaint, calling the complaint hotline, complaining to a supervisor/manager) and/or (2) participated in the complaint process (i.e. testify or assist in an investigation, administrative process, or lawsuit). Adverse actions can be anything that deters employees from coming forward to report or assist in an investigation into alleged unlawful activity. Privacy Employers are required to maintain employee medical privacy. HIPAA Personal Health Information – PHI (any information relating to the provision, receipt or payment of health care services provided to or in possession of a plan or provider) ADA & FMLA Use of information generally limited to legitimate purpose of identifying need for and or reasonable accommodations or eligibility for leave. Maintain apart from personnel file records, limited disclosure. Limits on timing, extent and nature of inquiries – MUST be job or absence related. Protective State Laws Other Policies Genetic Information Nondiscrimination Act of 2008 (GINA) Prohibits use of genetic information in employment, restricts the acquisition of genetic information and strictly limits the disclosure of genetic information. Rehabilitation Act of 1973 Prohibits discrimination on the basis of disability in programs conducted by Federal agencies, in programs receiving Federal financial assistance, in Federal employment, and in the employment practices of Federal contractors. The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in title I of the ADA. Adult Track, March 21 7 Tourette Syndrome Association 2014 National Conference Other Policies Family & Medical Leave Act of 1993 (FMLA) Applies to an employer with 50 or more employees within a 75 mile radius Applies to an employee with 12 months of service and 1,250 hours of service in prior year Eligible employees may request 12 weeks of unpaid Family/Medical Leave in each rolling 12 month period To deal with a serious medical condition, or to care for a new child or family member with a serious medical condition Time can be taken intermittently “Serious health condition”: An illness, injury, impairment or medical condition which requires inpatient care or continuing treatment by a health care provider. Examples: heart conditions, most cancers, back conditions requiring surgery or physical therapy, pneumonia, severe arthritis, complications relating to pregnancy, migraine headaches Thank you. Adult Track, March 21 8