What happened

The Equal Employment Opportunity Commission (EEOC) went after Sears, Roebuck & Co., when the company terminated 235 former workers immediately following their return to work after being out on workers’ compensation leave.

Sears violated the ADA when it refused to provide reasonable accommodations to employees who were returning from workers’ comp leave, the EEOC said.

Result: Sears agreed to settle for $6.2 million, and each employee in the suit will receive around $26,300. That’s the largest total settlement in the history of the EEOC.

In addition, Sears improved its workers’ compensation leave process and posted notices regarding the decree, according to EEOC officials.

Do you think this settlement is fair? Let us know in the Comments Box below.

The draft “Diagnostic and Statistical Manual of Mental Disorders” contains proposals to expand the category of disabilities to include a number of disorders, including binge eating and pathological gambling. Some have taken that to mean that employers will have to accommodate such disorders, or face penalties under the ADA.

The truth: It’s unlikely, for at least two reasons:

• When psychiatry classifies some disorders as disabilities, that doesn’t automatically mean they’ll fall under qualified disorders under the ADA. In fact, some recognized mental disabilities are specifically excluded from ADA protection, such as compulsive theft and pyromania.
• The proposals are in draft form only, and the psychiatry association has three years to field and incorporate public comment into the proposals. So, nothing will happen prior to 2013, and there could be a host of changes by then.

Answer True or False to the following (answers below):

1. If you supervise a disabled employee who can’t meet production standards for that position, the law calls for you to lower the standards for that person.

2. The Americans with Disabilities Act applies only to companies that have at least 15 employees.

3. Employees who abuse drugs are generally not protected by the ADA.

4. Employers are required to provide disabled employees with aids such as eyeglasses, hearing aids and the like.

Answers

1. False. The law calls for you to provide practical and reasonable accommodations to help the employee meet the general standards, but you are not required to lower standards.

2. True. The law recognizes that ADA accommodations might present too big a burden on small employers who have less flexibility.

3. True. Bans against and penalties for drug abuse can be fully enforced by supervisors and employers, and are not affected by the ADA. The one exception is if an employee enters a rehabilitation program and asks for help. Still, even if an employee is in rehab, you can discipline the employee for subsequent instances of abuse.

4. False. Employers are required to make accommodations in some instances, such as a chair, but generally aren’t required to supply healthcare “personal use” items.

An Illinois man filed for a disability pension, claiming he was unable to do any work — and then he turned around and sued his employer for failing to accommodate his disability.

Tried to double dip

Here’s what happened: A police officer developed chronic obstructive pulmonary disease, a condition that makes breathing difficult.

His doctor cleared him for light duty, but no such positions were available. So the officer applied for a disability pension.

During a hearing, the man testified that his condition made it impossible to fulfill a police officer’s normal duties — “chasing a suspect or wrestling with an unruly one.”

Result: He was granted the pension.

But then he sued the department under the Americans with Disabilities Act (ADA), claiming it should’ve accommodated his disability by putting him on light duty.

The court wasn’t impressed. Taking his hearing testimony at face value (remember when he said he couldn’t fulfill an officer’s normal duties), the judge said, there was no way the man could do the job — with or without an accommodation.

Can’t claim one thing in one hearing and then deny it in another, the court ruled. So it dismissed the ADA suit.

Cite: Butler v. Village of Round Lake

It’s a constant challenge for employers: Offering the benefits and incentives that employees desire without running into compliance problems with the feds.

Here are three popular benefits that present a legal minefield for benefits managers — and ways companies can offer them without fear of repercussions.

1. Wellness programs and the ADA

While every employer wants to promote healthier lifestyles for its employees, some wellness initiatives run afoul of the Americans with Disabilities Act — if the initiatives are constructed in a manner that makes it more difficult for certain employees to participate.

Example: A company unveils an on-site exercise program; participants can bring home perks like extra vacation days, cash bonuses, gift cards, etc.

Problem: The company has several disabled employees who are physically unable to participate and, therefore, can’t reap the benefits of the rewards.

Fix: If your wellness program includes certain features in which disabled employees can’t participate, create some alternatives where these employees can earn the rewards — like attending a class on the benefits of doing the cardiovascular exercises permitted by their disability.

Note: Don’t forget the tax implications of your rewards.  For example, all cash equivalent rewards — gift cards, etc. — are taxable, where as the tax status of an iPod Shuffle or movie tickets is uncertain.

2. Domestic partner benefits

While domestic partner benefits are highly coveted by many employees, domestic partners aren’t generally granted the same protections as spouses under ERISA and the IRS regs. For example, unlike spousal health coverage, domestic partner benefits are taxable.

However, there are two exemptions:

1. If the employee’s partner qualifies as a dependent, or
2. If the partner is recognized as a spouse or the benefits are protected under state law, as in MA, CT and VT.

And there are more restrictions surrounding the rules for flexible spending accounts (FSAs). However, ERISA trumps state law, and flex accounts are subject to the Defense of Marriage Act (DOMA), which only recognizes traditional marriages.

The effects: Flex accounts may not reimburse workers for domestic partner medical care, care of a domestic partner’s dependent, etc.

To get around the red tape, many companies require the employee to cover the entire cost of the partner’s health coverage. To balance this out, some employers adjust the worker’s pay to make up for the difference.

For a more extensive look at the tax problems with domestic partner benefits, check here.

3. Employee referral programs and the EEOC

The Equal Employment Opportunity Commission has already addressed the problems that accompany word-of-mouth recruiting. According to the EEOC, employee referrals can limit workplace diversity and increase the risk for discrimination because employees tend to only recommend colleagues of the same race, gender ethnicity.

Potential legal problems: Even in cases of accidental discrimination, companies that do extensive hiring based on employee referrals can be fined or sued by the EEOC. To add to more pressure to employers, EEOC compliance manuals now recommend that most firms scale back — or eliminate altogether — their employee referral programs.

Safeguard: If your company has no intention of scrapping its employee referral program, make sure to measure its effect on employee diversity and encourage widespread participation.

The scene:

“And so the doctor says I’m going to have to stick with a permanent eight-hour schedule to keep my blood sugar on an even keel,” Frankie explained to his supervisor, Lisa.

At hearing the news, Lisa rocked back in her chair and let out a deep breath as she spoke: “That’s going to be a problem.

“I agreed to let you go on an eight-hour schedule temporarily to see if it would help straighten out your diabetes. But with that big new customer we just signed, I’m expecting everyone – and I do mean everyone – to work overtime.”

“I’d love the overtime,” Frankie countered. “But it’s a choice between money and my health.”

“OK,” Lisa nodded, “then maybe I can get you transferred to maintenance. They’re about the last group still working only eight hours a day.”

“That’ll mean an hourly pay cut,” Frankie said. “I can’t live with that, either.”

OT required
Frankie continued to refuse the transfer. After he was fired, he insisted in a lawsuit that the company had accommodated his health problem and should continue to do so – by letting him stay in his job and not requiring him to work overtime.

The company said OT was a mandatory part of the job, and asked a judge to throw the case out of court.

Did the company win?

Yes, the company won when a judge dismissed the case.In doing so, the judge explained that, yes, diabetes qualifies as a legitimate disability and any employee who suffers from it is eligible for a reasonable accommodation.

However, the judge also noted that reasonable accommodation doesn’t translate to any accommodation the employee desires.

When the supervisor established that overtime was a crucial part of job, that meant refusing to work overtime couldn’t be under the accommodation umbrella. Plus, the company had offered the employee a job that fit his schedule.

And what about the fact that the supervisor had allowed the employee to work a limited schedule on a temporary basis? That, the judge said, didn’t commit the company to keeping the schedule permanently.

‘Essential functions’
The Americans with Disabilities Act requires employers to provide reasonable accommodations to employees with qualified illnesses or injuries.

The Act states, however, that the employee must be able to perform the “essential functions” of the job – usually those demanded of other employees in similar positions.

[Based on: Rehrs v. The Iams Co.]

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.

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.