Before Congress amended the Americans with Disabilities Act to counter extremely narrow court interpretations, it was commonplace for courts to hold that attendance was an essential function of most jobs.  Therefore disabled employees who could not meet the standards for attendance, especially those not covered by the Family and Medical Leave Act, were often denied a remedy in court.  This result held despite the EEOC’s guidelines urging employers to offer paid or unpaid leave as an accommodation to a disabled worker.

Given the accelerating use of technology, and the strides taken to separate employees from a central workspace, the requirement of on-time attendance is no longer essential to many jobs.

Indeed, attendance in a specific place is often not required; many employees have no office other than their homes or cars, and many others can competently perform their jobs at least at times from home.  Depending on whether the employee works in a team or mostly alone, the on-time requirement may be arbitrary, where the disability itself, or the need to attend doctor’s appointments, prevent regularly arriving at 9:00 a.m.  The use of across the board pronouncements about attendance therefore has to be replaced with an in-depth look at the actual job requirements, and the ability to accommodate a disabled worker’s needs.

The EEOC takes a critical look at employers using “no fault” attendance policies, in which a certain number of occurrences, or strings of absences, leads to termination, no questions asked.  While the policy itself does not contravene the law, a refusal to reconsider it for a disabled worker can be an ADA violation.  In addition, the EEOC considers that policies that automatically sever an employee who cannot return to work within the 12 weeks allowed under the FMLA may be violating the ADA.  The ADA’s requirement of discussing the issue, and trying to arrive at a “reasonable” accommodation trumps the hard and fast rules.

The amendments overturned the trend in the courts to make it difficult to establish that someone was indeed “disabled.”  For awhile, a plaintiff had to walk a tightrope: disabled enough to fall under the act’s protections, but not so disabled that she could not perform the job.

The regulations may not be popular with employers, but clarity is always better than gray areas, which only lead to more litigation.  The EEOC’s regulations list a host of conditions that should nearly always be considered a disability under the law.  This could forestall a lot of court fights.  For example, the EEOC lists cancer, cerebral palsy, HIV infection, multiple sclerosis, bipolar disorder, post-traumatic stress disorder,  major depressive disorder, diabetes and epilepsy.  In addition, although pregnancy is a temporary condition, a pregnancy-related impairment that substantially limits a major life activity qualifies as a disability.

The amendments also ease the proof burden for employees or applicants claiming that they were discriminated against based on their being “regarded as” having a disability.  Now, a person no longer has to prove that the employer perceived him as substantially limited in the ability to perform a major life activity, or that the perceived disability itself qualifies under the ADA.  The regulations use these examples:

“if an employer refused to hire an applicant because of skin graft scars, the employer has regarded the applicant as an individual with a disability. Similarly, if an employer terminates an employee because he has cancer, the employer has regarded the employee as an individual with a disability.”

These regulations are designed to protect people with disabilities from unlawful discrimination, and also make clear what actions qualify as unlawful discrimination.  In that regard, they do a service to employers and employees alike.

Employers often have difficulty offering accommodations, though it’s unclear to me why that should be so.  In this case, the employee not only asked for what she wanted, she evidently was visibly disabled.  Yet nothing was done for years.  That supported the settlement, but it looks as though the library lost an employee over it.

Employers have a harder time when a disability is not readily apparent.  Ever wondered about someone who uses a handicapped space, and appears not to need it?  The person may have a congestive heart condition, recent surgery on a knee, something else you can’t see.  Employers, too, can make judgments that run afoul of the law.  An employer is supposed to engage in an interactive process with the employee to explore what the employee might need to be able to perform the essential functions of the job.  If the employee cannot do the job despite reasonable accommodations, then there is no discrimination, but an effort has to be made to try to make it work.

Under the Americans with Disabilities Act, an employer may not discriminate against an employee with a disability, or who is regarded as having a disability, or who has a record of a disability, so long as the person can do the essential functions of the job with or without a reasonable accommodation.  In many cases the dispute centers on the identification of what are the truly essential functions of the job, in others whether the accommodation is reasonable.  But here, the laid off workers were able to do their jobs.  In a case filed in Atlanta by the EEOC, a worker who had been managing to do her job as a cashier at Rite Aid with arthritis by using a small stool at the cash register.  After seven years of this accommodation, a new manager removed the stool because he “did not like the idea” of her using the school.

Discrimination against disabled employees probably stems from several psychological and financial sources.  Some people just do not like people who are different, or have squeamishness about someone with a disease or disfigurement.  Some employers calculate the cost of insurance premiums by someone with a medical condition, or assume that the person will take off more time than others.  The law attempts to deal with this range of motivations by making it illegal to discriminate against someone who has a disability, has a record of a disability (such as cancer in remission), or is regarded as having a disability (such as where the person is rumored to have AIDS).

Although the EEOC’s complaint does not highlight this, the action of the Maryland firm requiring an questionnaire about health conditions and medications is a major no-no.  Employers are allowed to ask if someone can perform the essential functions of the job with or without a reasonable accommodation.  After hiring the person, the employer can explore the accommodations needed in more detail.  But here, the EEOC alleges that employees who are doing their jobs without problem are subjected to an intrusive questionnaire, which was then used to weed them out.  Neither of these actions passes muster under the ADA.

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.

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.

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.

• 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.