Posted by marykeating on August 27, 2010 under Workplace privacy, disability discrimination | 
A local hospital, the Baltimore Washington Medical Center, is accused of forcing out injured employees in violation of the Americans with Disabilities Act and HIPAA. The class action lawsuit filed this week in federal court alleges that the hospital routinely insists that employees returning from medical leave undergo a medical examination by its own physician. The physician then is likely to opine that the employee is not capable of returning to work, contrary to the worker’s own doctor’s opinion. According to the suit, the hospital’s physician uses confidential medical information without the employee’s consent; on the other hand, the physician takes almost no note of the job requirements in deciding that the employee cannot do her job. Therefore there is no interactive process, as required under the ADA, to determine if some reasonable accommodation could keep the employee working.
I have seen this pattern followed by other employers. Fitness for duty exams are legal. But they can be misused. The physician enjoys the cachet of the highly trained professional, who is allegedly worrying only about the employee’s health and well-being. Yet in the hospital setting especially, the physician has a built-in conflict of interest. Even outside the hospital, the fitness for duty exam is performed by someone paid by the employer, and therefore the doctor’s independence may be compromised.
Posted by marykeating on April 30, 2010 under disability discrimination, retaliation |
William Blake sued Baltimore County in 2007 for retaliation. Blake had testified, after being subpoenaed, in a case brought by a fellow officer claiming to have been forced into early retirement in violation of the Americans with Disabilities Act. The next day the County ordered him to report to its chosen physician to determine if he was fit for duty. He was also ordered to bring voluminous medical records. Officer Blake felt compelled to comply with the order, since if he defied his superior he could be fired. But he was quite disturbed by the intrusion into his medical history.
The asserted reason for this exam was a ten-year old single instance of a seizure, which the County had not revisited since it happened until the date after Officer Blake’s testimony. The County’s physician concluded that his physical condition presented no obstacle to his continuing to work. The County followed up with further orders to undergo tests.
Officer Blake presented a classic case of retaliation for participating in a proceeding alleging discrimination. While retaliation has always been illegal, the courts for many years narrowed the ability to pursue a retaliation claim by requiring the retaliation to take the form of a tangible employment action, typically firing or demotion. So the employee who was moved to a tiny office and given no work to do was unable to pursue a retaliation claim.
That was the case until the Supreme Court widened the definition in the case of Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). In that case the Supreme Court instructed that illegal retaliation occurs when the retaliatory treatment would dissuade a reasonable employee from making or supporting a discrimination claim in the future. It contrasted the anti-discrimination and the anti-retaliation provisions of the laws forbidding workplace discrimination: the anti-discrimination provision “seeks to prevent injury to individuals based on who they are,” while “the anti-retaliation provision seeks to prevent harms to individuals based on what they do.” Therefore, the types of retaliation that could chill the exercise of rights is much broader, and not necessarily limited to the workplace.
Since Officer Blake continues to work for Baltimore County, the jury sitting in federal court in Baltimore awarded him damages based solely on his emotional distress. Kudos to his lawyer, my friend Kathleen Cahill, for helping him obtain justice.
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.
