The facts:

An employee who was being treated for cancer suffered from dry mouth and throat as a side effect of the treatment, and had to consume large amounts of water throughout the day to combat the side effect.

As a result, she asked for two disability accommodations:

• Relaxing of a rule that prohibited drinks of any kind at workstations.
• Permission to leave the workstation often, and without asking, because of a frequent need to use the restroom.

She was granted both accommodations, and worked under those conditions for several months without incident except for one time:  A substitute boss who hadn’t been informed of the employee’s condition refused to all the employee to leave the workstation during an especially busy period. The employee wet her pants.

The employee sued for denial of a disability accommodation.

The employee said:
The temporary supervisor’s blunder caused extreme embarrassment, besides being an illegal breach of the agreement to grant her the accommodation.

The employer said:
The employee had worked under the accommodation conditions for several months without a hitch — in that the regular supervisor had never once denied the employee the accommodation. The incident in question was a simple mistake in communication, in that the temp supervisor wasn’t aware of the accommodation, and would have granted it had he been aware. Further, the employer maintained, the employee should have informed the boss of the accommodation or should have just left the workstation to use the restroom.

Who won the case?

Answer: The employee, who received $200,000 in damages from the employer.

Why: The court rejected the employer’s argument on two counts –

• The employee was under no obligation to inform the boss of the accommodation. The legal language for such an event is called continuing the “interactive process” — the back and forth between employee and supervisor to arrive at a reasonable accommodation. The court said the employee had already engaged in the interactive process and was under no obligation to continue it with another supervisor once the accommodation had been granted.
• Even a single incident of failure to accommodate can have more-than-trivial consequences. An employer must be vigilant about maintaining the accommodation at all times. In short, someone should have informed the temp supervisor about the situation.

Cite: A.M v. Albertsons LLC.

The scene:

“You know demoting Marty is going to present a little problem, right?” HR manager Diane Corsey said.

“You mean because of his cerebral palsy?” Darlene asked.

“I’m not saying you can’t or shouldn’t demote him,” Diane noted. “I just want to be sure it’s not because of his disability.”

“This is not about his disability,” Darlene affirmed. “It’s about his performance. It takes him forever to get anything done. He’s had warnings, and there’s been no improvement. In fact, it it wasn’t for his disability, I’d probably recommend firing him.”

“Have you talked to him about any accommodations we might make that would make the job a little easier for him?” Diane asked.

“No, because he hasn’t asked about accommodations,” Darlene said. “We talked about this when we hired him – that the law didn’t obligate us to offer him help if he didn’t ask for it. He’s pretty stubborn about being independent, you know.”

First move
“I know,” Diane agreed. “Still, I wonder whether we should make the first move on that.”

Darlene went through with the demotion, and Marty ended up quitting – and suing for disability discrimination. The company said Marty never asked for an accommodation, so the supervisor had gone by the book.

Did the company win? (Answer below.)

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Answer:

No, the company lost.

The HR manager and the supervisor had interpreted the law almost perfectly, the judge noted in the decision. Almost.

The Americans with Disabilities Act does state that in most cases, the employee is required to request a disability accommodation from the employer.

This was the exception, however.

When an employee’s disability is so obvious and the employee’s performance is below standards, the responsibility falls on the supervisor to approach the employee and suggest an accommodation for the disability.

Of course, the employee isn’t required to accept an accommodation, and in that instance the matter is closed. But for obvious disabilities, the supervisor must make the first move and ask.

Don’t ignore the obvious
The lesson here is that you just can’t ignore the obvious.

Being aware of the problem, the supervisor could have approached the employee and made a suggestion, especially because the employee was struggling with performance.

Broaching a subject like that can be difficult, but if you keep it performance-related, you’re on safe legal ground.

[Based on: Brady v. Wal-Mart Stores, Inc.]

Ever since the ADA Amendments Act got passed in January, employers and HR managers have been asking, “So, what does all this mean?” The Equal Employment Opportunity Commission has finally gotten around to giving some answers.

Last week, the EEOC laid out an explanation of employer responsibilities for following the act (knows as “ADAAA”).

• First, in a key passage, the agency summarized the intent of the act:

“The definition of disability … shall be construed broadly, to the maximum extent permitted by the terms of the ADA. The focus of an ADA case should be on whether discrimination occurred, not on whether an individual meets the definition of ‘disability.’”

Meaning: Besides broadening the circumstances under which a worker is considered disabled, the act also broadens the circumstances under which a worker can sue for disability discrimination. In other words, if a worker can show that an employer discriminated because of perceived disability — even if the worker wasn’t disabled — the worker has a case against the employer.

• The agency also put into focus some of the broader circumstances that make up a disability:

“An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered a disability.”

Here’s how that differs from earlier rules: Previously, an inability to do the physical requirements of a job wasn’t enough to qualify a worker as disabled. The individual also had to show some limitation in performing “major life activities,” such as walking, eating, etc. The EEOC’s interpretation of the new rules turns all that around to a point that a limitation in doing the specific tasks of a job could be enough to categorize someone as disabled.

The EEOC provides an example:

“Someone with a 20-pound lifting restriction that is not of short-term duration is substantially limited in lifting, and need not also show that he is unable to perform activities of daily living that require lifting in order to be considered substantially limited in lifting.”

Meaning: A long-term limitation on doing a work function is a disability.

• Short-term limits on major life activities now also fall under the definition:

“An impairment may substantially limit a major life activity even if it lasts, or is expected to last, for fewer than six months.”

Meaning: What was considered a “temporary condition” can now be considered a “disability.”

Any good news?
It’s not all bad. The regulations maintain the existing requirement that a worker must be a “qualified individual with a disability.” That means the individual “satisfies the requisite skill, experience, education and other job-related requirements … and who, with or without reasonable accommodation, can perform the essential functions of such position.”

So you still can require applicants and employees to meet essential job requirements, which, for most jobs, include regular and predictable attendance and conformance to the basic standards of performance and behavior.

And even in the case of the employee with a 20-pound lifting restriction, yes, that person may be disabled, but you still can disqualify the person because lifting is an essential part of the job and no reasonable accommodation is available.

As for the temporary part (”fewer than six months”) of the regs,  the EEOC recognizes that not all temporary conditions are disabilities:

“Temporary, non-chronic impairments of short duration . . . such as the common cold, seasonal or common influenza, a sprained joint, minor or non-chronic gastrointestinal disorders, or a broken bone that is expected to heal completely” generally are not disabilities.

Answer: The Fifth, Sixth, and Seventh Circuit Courts of Appeals have held that the ADAAA does not apply retroactively. In general, the federal courts have determined that Congress indicated no intent that ADAAA cases in effect at the signing date would be covered by the new law.

That, of course, is good news for employers and HR managers. The ADA amendments mostly make it easier for employees to win accommodations and put a greater burden on employers to offer accommodations. Specifically, the new law says employers will have to:

• make accommodations and treat as disabled any applicant or employee who qualifies as such, without regard to mitigating measures. Previously, the Supreme Court had ruled that mitigating measures such as medications or prosthetics would take the employee out of the official category of “disabled” and exempt the employer from offering workplace accommodations.
• take into account a broader range of activities, or “functions,” that are considered when classifying a worker as disabled: performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. None of those appeared in the pre-Jan. 1, 2009, ADA regs.

The Equal Employment Opportunity Commission offers guidance on the ADA amendment in the form of a new publication, “The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities.”

Here are three danger zones:

• Suppose you run across a Facebook photo of your candidate swilling beer in his underwear at a wild party. Would that push you to deny the person a job? In some states it’s illegal to deny a job to someone because of off-duty conduct that’s legal. (And while guzzling beer while wearing nothing but skivvies isn’t exactly model behavior, it’s not illegal.) The exception: If you can show a link between the depicted behavior and the person’s job duties — and how that behavior might interfere with the duties — that’s legal.
• If you use a third party service to conduct certain types of background checks, the federal Fair Credit Reporting Act (FCRA) requires that you give prior notice of the check to the applicant being investigated. And some states, such as California, require notification even if you do the check yourself. Of course, if you were searching Facebook, you wouldn’t want to alert a candidate who might rush online to remove offensive material. No one knows whether the notification rules in the FCRA apply to a Facebook search. And the only likely way we’ll find out is if there’s a test case.
• Let’s say you go on Facebook and stumble upon the candidate’s description of his battle against AIDS. Now, you may not even think about using health as a reason to deny the person a job. But if you do turn the person down and he raises the question of disability discrimination, the ball’s in your court to prove that you didn’t use the information to make the decision.

Question:
Does attention deficit disorder (ADD) qualify as a disability?  If so, how far does a company have to go to accommodate someone with ADD?

Answer: 
Each case has to be considered separately, says employment attorney Jonathan Segal, but ADD is often regarded as  a disability.

Two questions to ask an employee with ADD (after,
of course, getting medical documentation of the condition):

1. What can’t you do?
2. What do you want us to do to accommodate you?

Employers don’t have to change job requirements and standards to accommodate a disability. So if the person says he or she can’t meet deadlines because of the condition, and meeting deadlines is part of the job, that could be grounds for termination. But if the employee says, “I can do the job (and meet deadlines) but I need a quieter workspace, a different computer, etc.,” the company must decide if such steps would be reasonable.

Almost 1,200 HR managers responded to our poll about how they view the employment policies of President Barack Obama, and how those policies will affect HR. Here’s what they said, and here are 10 relevant pieces of legislation that probably will come into play in 2009.

The poll, and how they responded:

Do you think President-elect Obama’s policies on employment law will:

• Make your job more difficult — 69%
• Have no effect on you — 22%
• Make your job easier — 9%

Some comments:

“Please share the results of this poll with Obama and his staff. They need to try and fully understand the implications of their impending actions on this country.”

“I do believe that Obama’s policies will have a profound and accelerated degredation of an already overburdened and undersupported function…Human Resources.”

“Everyone enjoy[s] working here, the company provides excellent benefit, fully paid POS health insurance with tier-one carrier, Safe Harbor 401K, annual cash bonus with average of 6.6% annual salary increase, stock options. We did not need Federal government to tell us how to treat employee[s].”

What’s coming in ‘09
Here’s a rundown of the employment legislation that’s likely to cross the new president’s desk:

• Paycheck Fairness Act: Among other changes to the Equal Pay Act,  the legislation proposes that, for the purpose of demonstrating pay discrimination, a plaintiff can use compensation comparisons of employees who do not even work at the same physical place of business.
• Working Families Flexibility Act: Expands an employer’s obligations when an employee requests a change in hours or venue to accommodate family needs.
• Employee Free Choice Act: A proposal to make it easier for employees to form a union.
• RESPECT Act: Redefines the term “supervisor” in certain industries, thereby making some supervisors eligible for union membership – and empowered to act in the best interests of the unions and not the employer.
• Patriot Employers Act: Awards tax credits and other benefits to employers who, for instance, keep their operations from moving overseas and offer health insurance to their employees.
• Lilly Ledbetter Fair Pay Act: Changes the statute of limitations on how far back and employee can go to file a pay-discrimination suit against an employer.
• Employment Non-Discrimination Act: Would provide protections to gay, lesbian and bisexual workers against employment discrimination similar to the protection provided under Title VII of the Civil Rights Act of 1964.
• FMLA Expansion Act: Would expand coverage under the Family and Medical Leave Act to companies with at least 25 employees, as opposed to the 50-employee minimum in the current law.
• Healthy Families Act: Proposes that any company with at least 15 employees would required to provide paid sick leave.
• Civil Rights Act of 2008: A far-reaching piece of legislation that would amend a number of employment laws affecting, for instance, discrimination charges involving age and pre-employment tests, and changing the rules under which disputes can go to arbitration.

President Bush signed the ADA changes in September to expand the definition of “disability” and greatly restrict how employers can use mitigating factors when deciding whether an employee meets the standards for a  disability accommodation.

The problem now is that Republican commissioners Naomi Earp and Constance Barker voted to move ahead with the new regss while Democratic commissioners Stuart Ishimaru and Christine Griffin voted against the notice of proposed rulemaking that implements the new law. Tradition calls for the commissioners to iron out their differences and vote again. Maybe.

EEOC legal counsel Reed Russell insists that the regs will go into effect January 1, no matter what. To complicate matters, the approval process calls for the commission to OK the sending of the regs to the U.S.  Office of Management and Budget for review before the regs appear in the Federal Register.

Check back with us in early January to see how all this is resolved.

With the recent changes to the Americans with Disabilities Act, there’s some confusion about disabled employees’ privacy rights — and HR’s obligation to protect those rights.

ADA’s privacy provisions — and an employer’s obligations — kick in at three stages:

1. When someone applies for a job.
2. When someone is offered a job.
3. While someone is employed.

When someone applies for a job, or the “pre-offer stage.” You can’t make requests for medical exams or inquire about disabilities. The ADA does allow you to discuss medical-related issues at this stage in three situations:

• You can ask if the applicant has the ability to perform key functions of the job — such as, say, being able to lift items of a certain weight. That type of question is OK as long as you ask it of all applicants, disabled and nondisabled.
• You can ask the applicant to actually perform the function — as a “test” –  to verify fitness for  the job. Again, that’s OK as long as all applicants are asked to perform the function.
• If a disability is obvious — such as an applicant who uses a wheelchair — or if the applicant volunteers information about a disability, you can ask if any accommodation would be required by the applicant.

When someone is offered the job. You can require a medical exam, and you can make passing the exam a precondition for employment. Note two conditions:

• Once more, the medical-exam requirement must apply to all potential employees, not just disabled ones.
• The results of the medical exam must be kept in a separate, confidential file. You can disclose the information of that file to (a) supervisors who need to know the employee’s restrictions and accommodations, (b) first-aid and safety people who perform emergency treatment, and (c) government officials who are investigating ADA compliance.

Can you withdraw an offer based on the results of the exam? Generally, no, except if you can show that a disability presents a “direct threat” to the safety of the person or co-workers, or where no reasonable accommodation exists for the disability.

While someone is employed. The ADA prohibits you from requiring someone already employed to have a medical exam or to answer questions about a disability unless the exam and questions are related to the functions of the job. The confidentiality provisions of the results are the same as those for the post-offer exam — separate files accessed only by supervisors and first-aid personnel who need to know.

Click here for ADA Q&As about privacy and other provisions.

Depending on your point of view, Molski is either (a) a hero for the disabled or (b) a scam artist who’s figured out — to near perfection — how to game the Americans with Disabilities Act.

Molski was injured in a motorcycle accident nearly 20 years ago and is confined to a wheel chair. Apparently, that’s no impediment to his making frequent trips to California courtrooms to file lawsuits — about 400 of them, according to the Los Angeles Times – against businesses that don’t follow disability-access regulations to the “T.”

The fines for such violations can run as high as $4,000 a day. So, the owners are faced with three possibilites:

1. Pay the fines.
2. Pay for the renovations to get up to code on disability access.
3. Settle out of court by paying Molski.

Court records show that most owners choose #3, providing the 38-year-old Molski with cash settlements estimated in the hundreds of thousands of dollars.

But all that may be coming to an end.

One federal judge has barred Molski for filing any more lawsuits in the Central District of California. And the U.S. Supreme Court recently denied Molski’s appeal to hear his ADA suit against a Chinese restaurant in Solvang, CA. Molski had taken that case to the High Court after a lower court refused to consider the case.

All we can say is that the Supreme Court building better be up to snuff on disability access or someone there might expect to hear from Molski’s lawyer.