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.
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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
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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.
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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.
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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.
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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.
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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.
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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.
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