Tag: Disability

FAQ Series: Is Covid-19 A Disability?

May 11, 2020

As of May 11, 2020, the Equal Employment Opportunity Commission (EEOC) has not stated that covid-19 is a disability under the Americans with Disabilities Act (ADA).

Therefore, an employee who contracts covid-19 is not entitled to protections under the ADA including reasonable accommodations, freedom from discrimination, harassment and retaliation on that basis alone unless that employee also has a disability or is part of another protected class under other federal or state statutes.

Positive Drug Test? Now What?

October 28, 2019

What does a public employer do when a job applicant’s test comes back positive? 

In the business world, employers sometimes ask job applicants to submit themselves to drug tests. A drug test can be completed either through a urine sample or hair follicle, depending on the County or State. So, what happens when the test results come back positive?

A few 11th Circuit decisions have weighed in on the issue of the best way for public employers to deal with a job applicant’s positive test results.  In Voss v. City of Key West, Voss applied for a position as a Solid Waste Coordinator at a train station. When asked to undergo a preemployment drug test, she refused, and filed an action challenging the constitutionality of the city’s workplace policy after she was not hired. The United States district court, in making its decision, gave employers three things to look out for before making an employment decision after an applicant’s test results return positive. 

 1.     Verify the importance of the test to the company or organization to determine whether it justifies a fourth amendment intrusion. In Voss, the Court decided that the reasons that the city gave for conducting a drug test for job applicants were not justified. The city claimed that the test was created to protect the public from motor vehicle accidents and personal injury to the employees and the public; stating that employees who use illegal drugs tend to be “less productive, less reliable and prone to greater absenteeism.”

2.     Ensure the desired position is one that is safety-sensitive. The position at issue in Voss was a Solid Waste Coordinator and the court found that this was not really a safety-sensitive position. Because, among other reasons, the city does not subject the Solid Waste Coordinator to random drug testing to which it subjects employees the policy classifies as “public safety positions”. 

3.     Distinguish between employees and applicants before carrying out a drug test. If the tests are disclosed to applicants before they apply, then they have the opportunity to withdraw their applications or not apply at all before any invasive tests are carried out. The court advised that employers should make sure that applicants have knowledge of the test before they submit their applications. 

More recently, as the issues of opioid and medical marijuana workplace pervasiveness rise to a head, both public and private sector employers must remember to consider the requirements of the American Disability Act. 

The ADA requires employers who are aware of a disability to provide a reasonable accommodation that would permit the disabled employee to perform the essential functions of her job. Accordingly, when an applicant’s drug test comes back positive the employer should inquire whether the applicant is taking such medication for medical reasons before making a decision on hiring the applicant. Essentially the results of this inquiry could lead to a requirement to commence, and participate in, the interactive process pursuant to the ADA.

In conclusion, if an employer is able to justify their reasons for requesting a pre-employment drug test, show that the position for which the test is required is safety-sensitive, disclose the requirement for a test to the applicant in advance of the application, and consider its obligations under the ADA, only then is the employer is free to make decisions based on its employee relations policies.

My EEOC Charge is 1 in 90,000 – EEOC Fiscal Year 2018 Enforcement and Litigation Data

April 18, 2019

On April 10, 2019, the U.S. Equal Employment Opportunity Commission (EEOC) released detailed breakdowns of its work in fiscal year 2018 which ended on September 30, 2018. You can find details on its website but some remarkable statistics are as follows:

  • Received 76,418 charges of workplace discrimination

  • Resolved 90,558 charges of discrimination (including those filed in prior years)

  • Secured $505 million for victims in private sector, state and local government, and federal workplaces

  • Handled over 519,000 calls to its toll-free number, 34,600 emails and more than 200,000 inquiries in field offices

  • Filed 199 merits lawsuits alleging discrimination, including 117 individual suits and 45 suits involving multiple victims or discrimin­atory policies and 37 systemic discrimination cases

  • Achieved a successful outcome in 95.7 percent of all district court resolutions

Often, people inquire whether the #MeToo movement spurred more legal disputes. EEOC data demonstrates this was indeed the case. The agency also received 7,609 sexual harassment charges – a 13.6 percent increase from FY 2017 – and obtained $56.6 million in monetary benefits for victims of sexual harassment.

However, leading the pack as the most frequently alleged basis of discrimination with 51.6% of all charges filed, was “retaliation”, followed by “sex”, then “disability” then “race”, then “age”.

FAQ Series: Is High Blood Pressure A Disability?

May 28, 2018

Pursuant to the Americans with Disabilities Act, Amendment Act (ADAAA), a person who suffers from hypertension, also known as high blood pressure, can be a qualified individual with a disability entitled to statutory protections in certain circumstances.

Essentially, in order to qualify for these protections, the HBP must significantly interfere with the individual’s ability to work. For instance, a driver of a commercial vehicle subject to the Federal Motor Carrier Safety Administration Regulations would be disqualified from becoming a licensed commercial driver if he or she has a “current clinical diagnosis of high blood pressure likely to interfere with his/her ability to operate a commercial motor vehicle safely”.

To Serve and Protect: Discrimination Against Veterans In Employment is Prohibited

May 21, 2018

On the last Monday in May, Americans celebrate Memorial Day to commemorate all the men and women who have died in military service to the US. But what about those who return from a military tour… and join, or re-join, the workforce. The federal government through Congress enacted the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335, for this class of individuals to protect their right to work and to return to work.

USERRA prohibits discrimination against employees and potential employees based on their military service. It also imposes obligations on employers with respect to employees returning to work after a military tour of duty. The most unique characteristics of USERRA make it very different from other employment laws and civil rights law. Consider the following:   

  1. No Employer Bias: courts universally construe USERRA in favor of veterans, on the other hand, many with experience in the field will agree that most courts, especially the 11th Circuit and those within its jurisdiction (Georgia included) generally construe other employment related laws in favor of the employer.
  2. No Statute Of Limitations: USERRA has no statute of limitations for claims that accrued after October 10, 2008 and, in some cases, October 10, 2004. Other employment-related statutes have strict deadlines during which a claim must be brought such as Title VII and the ADA – one-hundred and eighty (180) days, the EPA – two (2) years, etc.
  3. No Minimum Employer Size: USERRA applies to all public and private employers, irrespective of size whereas laws like Title VII require a minimum of 15 employees, the ADEA requires 20, FMLA requires at least 75 employees within a geographic location
  4. No Termination Without Cause: USERRA creates a “for cause” termination standard for employees who return to work after one month or more of military service.  If an employee’s service was between thirty (30) and one-hundred and eighty (180) days, he or she may not be terminated without cause for up to six (6) months following his or her return to work.  And employees returning from more than one-hundred and eighty (180) days of service are afforded this protection from termination for a full year.  This is most relevant to states like Georgia where employees are terminable “at will” meaning that no cause for termination is required.

Note that in addition to USERRA, veterans may be protected under other employment statutes. For instance, an injury sustained during a military tour might make that individual a person with a disability and entitled to protections under the ADA. 

Happy Memorial Day!

How Long Is Too Long: Leave of Absence Under the ADA

April 20, 2018

Can finite leave of absence of more than one month can be a reasonable accommodation?

Federal circuit courts have rendered conflicting decisions regarding how much leave is reasonable under the Americans with Disabilities Act (“ADA”). Although given the opportunity to settle the dispute, earlier this month the U.S. Supreme Court declined to review a decision by the Seventh Circuit Court of Appeals holding that a multi-month leave of absence is beyond the scope of a reasonable accommodation under the ADA.

The Seventh Circuit had issued two decisions holding that even if the employee had a disability and an essential requirement of the job was impaired by the disability, the employee was not a qualified individual entitled to ADA protections on the reasoning that the accommodation sought (a multi-month leave) would not help the employee do the job, but would keep the employee from performing job functions altogether.

Ultimately the Seventh Circuit found that while the ADA may require brief periods of medical leave, such as days or even weeks, multiple month long periods of leave are not required under the ADA. The Court stated: “…not working is not a means to perform the job’s essential functions…”.

The Eleventh Circuit (in which the State of Georgia is located) is of the same opinion.

While it seems all appeals courts, and even the Equal Employment Opportunity Commission (“EEOC”), agree that indefinite leave is never a requirement, the EEOC disagrees with the Courts in that it has stated that placing a limit on the amount of disability leave to which an employee is entitled is a clear violation of the ADA.

Given the EEOC’s opinion on the issue, Georgia employers are not advised to take the position of rigidity with regards to how much leave is reasonable. Rather, employers are encouraged engage in the interactive process, consider each case individually, and err on the side of caution until further notice from SCOTUS.

FAQ Series: Is Addiction a Disability?

October 25, 2017

FAQ Series: Is addiction a disability?

 

According to the EEOC’s manual, “Persons addicted to drugs, but who are no longer using drugs illegally and are receiving treatment for drug addiction or who have been rehabilitated successfully, are protected by the Americans with Disabilities Act, Amendments Act from discrimination on the basis of past drug addiction.”

 

However, individuals who are currently illegally using unlawful or prescription drugs are excluded from coverage under ADAAA.