Posted by marykeating on February 9, 2010 under Employment benefit issues, Uncategorized, disability discrimination | 
The Americans with Disabilities Act has faced a formidable battle in achieving its original goals of outlawing discrimination, and improving the employment rates for disabled people. Originally signed into law by the first President Bush, the ADA forbade discrimination against individuals who had a disability, so long as they could perform the essential functions of their job, with or without a reasonable accommodation. One would have predicted that the “reasonable accommodation” language would have led to the most controversy, but in reality, the courts systematically limited the availability of ADA’s protections by narrowing the definition of “disabled,” so few employees qualified.
Congress made some helpful changes last year, specifically legislating around one Supreme Court decision. Yet it remains a difficult law, in part because of the often cited principle that “attendance is an essential function” of nearly every job. So people who are disabled and need a period of recuperation or hospitalization are especially vulnerable when strict attendance policies lead to termination. Often they are told that light duty is not an option (though they report that other people do get light duty), or that they cannot have more leave time.
The EEOC has been pursuing Sears Roebuck for just such a discriminatory policy since 2004. Last week, it reached a large settlement, $6,200,000 with the retailer, which will benefit 235 of its former employees. All 
complained that they were damaged by Sears’ inflexible policy requiring an employee to return to work within one year after an injury, and failed to accommodate their disabilities to enable their return. In addition, Sears is ordered by the Court not to discriminate in the future, must post a notice in its stores for three years explaining the consent decree, and is required to report regularly to the EEOC on the progress of its accommodations of injured employees. The consent decree also alters Sears’ policies of communicating with its disabled employees, and requires a centralized leave management team to oversee the requests for and grants of accommodations.
The success of this litigation may swing the pendulum away from shutting the doors to injured or ill employees. Whether the motivation is fear that the “damaged goods” will never do the job efficiently, that health insurance premiums will rise, or simply to punish the person who has taken “too much” of the sick leave benefits offered, employers will have to watch their policies and practices in light of the Sears decision.
Posted by marykeating on September 25, 2009 under disability discrimination |
Maybe we are all fatigued. Not from the swine flu, I hope, but from the endless overplayed news stories. It’s only September, though, and smart people are genuinely worried that this illness could infect a large swath of the population. (I’m somewhat comforted by one story that theorized that people who lived in the 1950s were probably exposed then to this very strain, and will be fine. Good, my kids will need me when they’re sick.) Other than taking precautions like stocking antibacterial supplies, what can employers do? The EEOC has just published a helpful list of ADA-Compliant suggestions, together with problem areas to avoid.
- Telecommuting. Some employers may want to expand or revisit the telecommuting option. Allowing more people to telecommute can slow the spread of the virus, as well as permit workers who need to stay near sick relatives to get some work done. Employers need to guard against imposing or denying telecommuting in a discriminatory way however. In addition, telecommuting may qualify as a reasonable accommodation under the Americans with Disabilities Act.
- Sanitary practices. Employers may also impose requirements, such as handwashing, use of masks, use of special tissue disposal containers, to impede the spread of contagious diseases. If any requirement would implicate a disability, however, the employer needs to take reasonable steps to accommodate the employee.
- Medical Tests and Questions. This area is frequently a touchy one for employers. They know generally that there are rules against asking about disabilities, rather than an employee’s ability to perform the essential functions of the job. But does that include the flu? Even in a pandemic? The EEOC guidance is interesting here, reminding employers that they can ask how an employee would be affected if schools were closed (contrasted with asking if they or family members are sick). And an employer may test a new hire, after the offer is made, if all new hires in the same situation are tested.
- Disabled Employees Vulnerable to Swine Flu. The swine flu is a temporary condition, and therefore not the sort of ailment that the ADA is designed to protect. It must be remembered, though, that certain chronic conditions may exacerbate the danger posed by swine flu, such as respiratory conditions, asthma and the like. The employer needs to be sensitive to a disabled employee needing an accommodation because his (or a family member’s) disabling condition makes the swine flu more serious.
- Family and Medical Leave Rights. The Fourth Circuit has already held that the flu is a serious illness subject to FMLA protections. For an employee with more than a year’s service with an employer of 50 or more employees, taking time to care for oneself or a family member with swine flue is protected activity under the FMLA, if all other requirements are met.
