New Checklist from OFCCP Related to Affirmative Action
The Rehabilitation Act prohibits discrimination against individuals with disabilities and requires government contractors and subcontractors to take affirmative action to give jobs to and promote qualified individuals with disabilities. According to the DOL, an affirmative action program is meant to provide individuals with disabilities with equal employment opportunity-it is supposed to be dynamic in nature and have measurable objectives and involve internal auditing. These affirmative action requirements under Section 503 apply to all government contracts and subcontracts over $15,000 for the purchase, sale or use of personal property or nonpersonal services. The written affirmative action programs requirements found in Subpart C of the Section 503 rule apply to every government contractor with 50 or more employees and a contract of $50,000 or more. The regulatory authority (OFCCP) has now developed an interactive checklist for contractors—the purpose of the checklist is to make contractors aware of their obligations and help them to comply with these obligations.…READ MORE
What if an employee with bipolar disorder is aggressive and disruptive? Does the ADA prevent an employer from firing that employee?
Potentially not, depending on the circumstances, according to a recent case from Eighth Circuit Court of Appeals. Walz v. Ameriprise Financial, Inc., Case No. 14-2495 (March 9, 2015). In this case, the plaintiff Marissa Walz worked for Ameriprise in a job which required good people and communication skills, along with the ability to work well in a team and exercise good time management. Walz’s bipolar disorder caused her to interrupt meetings, disturb coworkers and disrespect her supervisor. Walz’s supervisor had repeated discussions with her about her behavior and eventually issued her a formal warning. Walz applied for FMLA leave which was granted by the third party that administers these requests for Ameriprise. Walz never told Ameriprise of the reason for her FMLA leave. When Walz returned to work, provided a doctor’s note stating that she had been stabilized on her medication. Upon her return, Walz also was given and signed Ameriprise’s Individual Treatment Policy (addressing disability discrimination and the process for requesting accommodation).…READ MORE
What if an employee quits before hearing us out on our response to her reasonable accommodation request? Is my company liable?
No—according to a recent decision of the First Circuit Court of Appeals. EEOC v. Kohl’s Department Store, Inc., No. 14-1268 (1st Cir. Dec. 19, 2014). If an employee quits when she gets a negative response to her request for accommodation and fails to actually participate in the interactive process, the employer does not face liability. In this case, an employee suffering from type I diabetes worked for Kohl’s as a sales associate. The employee made a request for a particular type of accommodation related to her disability, which involved a particular schedule. Kohl’s was not willing to agree to the schedule outlined by the employee, but was willing to talk about other schedule options. But, before they could continue the conversation with the plaintiff, she stormed out and quit (and ignored Kohl’s later efforts to contact her and resume the discussion). The First Circuit found that Kohl’s was not liable.…READ MORE
Even Extremely Flexible Schedule Accommodation Request Not Unreasonable as a Matter of Law
The United States Court of Appeals for the D.C. Circuit recently reversed the decision of the district court in the case of Solomon v. Vilsack, No. 12-5123 (D.C. Cir. August 15, 2014), a case involving an employee’s request to have significant flexibility in the her working hours as a reasonable accommodation for her disability. The district court had granted summary judgment to the employer, the Department of Agriculture, on the grounds that a “maxiflex work schedule” such as that sought by the plaintiff was an unreasonable accommodation request as a matter of law. The Court of Appeals disagreed, stating that “[n]othing in the Rehabilitation Act establishes, as a matter of law, that a maxiflex work schedule is unreasonable” and leaving for remand the factual question of whether this request would have been reasonable on this case.…READ MORE
New Guidance from EEOC on Pregnancy Discrimination
Earlier this week, the EEOC issued a Notice titled Enforcement Guidance: Pregnancy Discrimination and Related Issues. The EEOC provides an overview of statutory protections, discussing the Pregnancy Discrimination Act (“PDA”), the Americans with Disabilities Act (“ADA”), and other requirements affecting pregnant workers, including the Family Medical Leave Act (“FMLA”), Executive Order 13152 Prohibiting Discrimination Based on Status as Parent, Section 4207 of the Patient Protection and Affordable Care Act which requires that employers provide reasonable break time for nursing mothers, and state laws that relate to pregnant workers. The EEOC provides a number of helpful examples of what would and would not constitute unlawful discrimination and is a useful tool for employers to review. This guidance can be found at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.…READ MORE
Policy Allowing No More Than Six Months’ Sick Leave Does Not Violate Rehabilitation Act
The Tenth Circuit was recently faced with the question of whether a university’s inflexible policy disallowing sick leave longer than six months violated the Rehabilitation Act. Rejecting the claims of the plaintiff, an assistant professor who sought more than six months leave after being diagnosed with and beginning treatment for cancer, the Tenth Circuit found that this policy did not itself violate the Rehabilitation Act. Hwang v. Kansas State University, No. 13-3070 (10th Cir. May 29, 2014).…READ MORE
Telecommuting—A Reasonable Accommodation?
Can an employee request the ability to work from home as a reasonable accommodation? And how easy is it for an employer to demonstrate that an employee’s physical presence in the workplace is required? In a world in which telecommuting is becoming ever more prevalent, yet companies still maintain that they benefit greatly from employees’ face to face interactions with both their coworkers and customers, these are difficult questions for employers. In its recent decision in EEOC v. Ford Motor Company, No. 12-2484 (April 22, 2014), the Sixth Circuit Court of Appeals addressed these complex issues, reversing the district court’s decision awarding summary judgment to Ford and finding that the EEOC had created a genuine issue of material fact as to whether the employee was otherwise qualified for the position where she was unable to be physically present in the workplace at all times due to a disability and had also created a genuine issue of material fact as to whether she was improperly terminated in retaliation for exercising her rights under the ADA.…READ MORE
A Sufficiently Severe Temporary Impairment May Constitute a Disability
There is no question that the ADA Amendments Act of 2008 (“ADAAA") broadened the meaning of “disability and provide employees even greater protection under the ADA. However, there remain some areas of uncertainty with regard to this new, broader definition. One such question was how the permanence of an impairment (or lack thereof) would affect the disability determination. The Fourth Circuit addressed this issue head on in Summers v. Altarum Institute, Corp., No. 13-1645 (4th Cir. January 23, 2014) and, while noting that it was the first appellate court to apply the expanded definition of “disability” under the ADAAA, concluded that a severe temporary impairment can constitute a disability.…READ MORE