Accessibility problems can stir up legal trouble, as well as limit the field of applicants available for open positions. To avoid those problems, talk with your IT department to see if your company’s recruiting site follows these guidelines laid out by the Job Accommodation Network:

1. Use text descriptions for images – Hold your mouse cursor over an image on your site, and a block of text should appear. That’s what special screen reader software used by the visually impaired will read to the viewer. Make sure the text is something descriptive and concise.
2. Caption audio and video – If your site includes audio or files, it should offer the option of a written transcript or closed captioning. Audio descriptions of video files should also be provided, if necessary.
3. Minimize reliance on color – View the site in a black and white display to make sure everything is clear to color blind viewers. Also, avoid using just color to convey information. For example, if an applicant skips a section of a form, don’t just highlight that area in red — also include text that says “required field.”
4. Allow easy keyboard navigation – Some viewers may need to navigate the site using only their keyboard. Therefore, it should be easy to scroll through links and fill out forms using the TAB key.
5. Give more options for applying – Forms may be difficult for some people to complete, so allow them to apply through e-mail, fax, mail or over the telephone. Also, include an easy-to-find EEO statement that also provides contact info to get help applying.

A truck driver applied for a job with a transportation company. During the interview, the hiring manager noticed the applicant had a prosthetic leg. Believing he couldn’t drive a truck safely, the managers didn’t offer him the job.

But despite his impairment, the applicant had a commercial driver’s license from the Department of Transportation, as well as several years of experience as a truck driver.

He sued, claiming disability discrimination.

The company tried to fight the claim but was unsuccessful and ended up settling for $56,500.

The lesson for managers: Don’t make assumptions about disabled applicants. You’re allowed to find out if someone can safely do the job — you don’t need to resort to discrimination.

Cite: EEOC v. KLLM Transport, 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.

If what this man says is true, employers could find themselves having to accommodate a new disability.

British DJ Steve Miller claims he has a medical condition that makes it difficult for him to work, shop or really do much of anything. The problem: Wireless Internet makes him sick.

Miller claims he gets dizzy, nauseous and confused whenever he is around a WiFi signal. He says he’s missed a lot of gigs throughout Europe because hotels, airports and even trains generally offer wireless Internet.

Just about the only place he says he feels fine is his house in a remote section of Cornwall, fortified with 18-inch walls. When he does need to go out, Miller carries a WiFi detector to avoid problem areas.

It may sound strange, but Miller’s not the first person to claim this type of condition. About 2% of the population believes they suffer from so-called “electromagentic sensitivity,” the Daily Mail reports.

And last year, a group of residents in Santa Fe, New Mexico, asked the city to remove WiFi from public buildings. They claimed they were allergic and the city was violating the Americans with Disabilities Act by limiting their access to the buildings.

New lawsuits coming?

Should employers worry about an employee taking them to court because they can’t work in a building with wireless Internet? After all, workers have brought ADA suits because of strong perfume and other “sensitivities” to airborne elements.

In this case, though, there’s probably little to be concerned about. Because it’s most likely all made up.

First, there’s no proof that any such condition exists. Some people claim to suffer from it, but the reported symptoms vary widely.

Also, the waves produced by WiFi transmitters are similar to those produced by cell phone towers, as well as radio and TV waves. Experts say it’s unlikely problems would be caused exclusively by wireless Internet.

But that probably won’t stop employees and other supposed sufferers from trying to argue their cases in court. We’ll keep you posted if any of these claims actually result in a lawsuit.

How can they find the right balance? What interview topics are off-limits?

Here are answers to three questions hiring managers have about interviewing disabled applicants:

1. Can we use a test to see if an interviewee can handle a necessary physical function — for example, heavy lifting?

Yes, those tests are OK. But only if you test every applicant, and not just those who appear disabled.

2. After describing the job’s requirements, can we ask applicants if they know of anything that would prevent them from performing those duties?

Yes, but again: You need to ask every applicant that question.

3. Can we ask if a disability is likely to get worse and interfere with performance in the future?

No — this type of question is akin to asking for a diagnosis or other medical information, which is prohibited under the Americans with Disabilities Act.

When it comes to obtaining and using employees’ health info, your firm’s health plan has more HIPAA rights than you may think.

Under HIPAA, your plan is allowed – without employees’ consent – to obtain individual health info (not just aggregate data) for the purpose of improving the quality of care. And there are a host of legal ways to use health data for this purpose.

Questions you can answer

Your plan’s TPA  is entitled to obtain and review a sampling of people’s personal health info to answer all of the following plan cost-related questions:

• What employees are and aren’t getting the right treatment?
• Which network doctors aren’t communicating treatments with
  each other, wasting resources?
• Which folks are and aren’t compliant with their prescription drugs?
•  Are the current health issues of your at-risk employees likely to be ones of concern a few years from now?

In short, you’re allowed to use the info to more accurately predict upcoming claims (and costs) in the short-term future.

What you can’t do with the info is make any employment-related decisions from your findings.  Legal experts debate if the prohibition includes charging smokers or other at-risk populations higher premiums.

But you can always use it when comparing the cost-effectiveness of different health plans or for making your wellness program even stronger.

Wellness program implications

Under HIPAA and ERISA, you’re allowed to use personal data as the starting point for having employees contacted regarding their health issues.
Based on the info you obtain, you can hand-pick people for educational mailings about specific health issues.

You’re even allowed to have a third party tell you if your employees have certain health problems (such as asthma or diabetes) and haven’t sought programs to treat the condition.

If you offer financial incentives as part of your wellness program, be aware that HIPAA’s non-discrimination rules require you to wipe the slate clean each plan year.

Legally, it’s still the safest policy to consult with an attorney before using health info apart from routine FMLA certifications or accommodating ADA.

But it’s good to know HIPAA is usually on your side in the battle to control health costs.

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.”

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.