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When a Doctor’s Note Doesn’t Cut It: Medical Exams after Leaves of Absence
Sometimes an employee may need to take a leave of absence from their job; the necessity may be for a variety of reasons, including a need to address physical or mental health concerns. When the employee wishes to return to work, how does an employer know if he is really ready and able to again meet the demands of the job?
Consider this scenario: an employee was going through a very messy divorce and, as a result, started taking several medications to deal with the stress. The medications had severe side effects, including mood swings, which had been noticed by coworkers for weeks. On a particularly bad day, the employee snapped and threatened several coworkers with violence. The employee was sent home for two weeks, but came back after the absence assuring everyone that he was fine. He had a note from a doctor stating that he could return to work, but everyone, including the employer, was leery of putting him back in the office environment. Can the employer ask for more than the doctor’s note?
The Americans with Disabilities Act provides that after an employee has been hired, an employer may make disability-related inquiries and require medical examinations only if they are “job-related” and “consistent with business necessity.” A medical examination is job-related and a business necessity if an employer has a “reasonable belief” that the employee’s ability to perform essential job functions will be impaired by a medical condition or that he will pose a direct threat due to a medical condition.
In the scenario given above, the employer would have a reasonable belief that employee posed a direct threat to other employees. It is the employer’s right to ask that the returning employee submit himself to a medical exam.
Of course, such a request may be met with resistance. Employers should document the basis for their reasonable belief that an exam is needed. It would be easy for a disgruntled employee to claim a medical exam request is retaliatory in nature. As is the case anytime when dealing with an employee’s health, conversations should be confidential in nature. Employee medical exams after leaves are possible, but must be approached with care.
Preston Clark Worley is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Worley concentrates his practice in employment law, land development, telecommunications, real estate and affordable housing. He is located in the firm’s Lexington office and can be reached atpworley@mmlk.com or at (859) 231-8780.
This article is intended as a summary of state and federal law and does not constitute legal advice.
“Why Does She Get To Do That?” Handling Questions about Employee ADA Accommodations
The Americans with Disabilities Act (“ADA”) requires any employer with fifteen or more employees to provide reasonable accommodations to individuals with disabilities, as long as doing so does not result in “undue hardship” to the employer. A reasonable accommodation can be any change in the work place that helps a person with a disability to enjoy equal employment opportunities. The ADA has very strict guidelines about when and how an employer may inquire about an employee’s disability. What happens, though, when a non-ADA employee asks you, the employer, why another employee is receiving perceived preferential treatment?
The ADA strictly prohibits employers from disclosing medical information about employees, but even if privacy rules are adhered to, some accommodations will be obvious to others. For example, consider these situations:
- A diabetic employee takes more scheduled breaks than others so that he can eat small meals.
- An employee with temperature sensitivity is allowed to wear a modified dress code.
- An employee who experiences seizures is receiving a service dog and, as a result, she must leave work to train with the animal for two weeks.
Obvious accommodations that are incorrectly viewed as “special treatment” can lead to an uncomfortable work environment. An ADA-employee may choose to disclose their disability and accommodation(s) with their co-workers, but if they do not, an employer needs to know how to handle the situation.
If confronted with a question about an ADA accommodation, you should generally inform the inquiring employee that you have policies in place for those who may face difficulties in the office. You should not disclose who the person experiencing the disability is (even if it is obvious) or what the disability is. Emphasize that the business, and employees, must respect the privacy of every employee.
In addition, consider what you can do before inquiries start. Although employers are not under an obligation to explain the ADA to employees, it could be beneficial to outline the Act in your employee manual. By doing so, you will help employees become familiar with its rules and regulations. Training is another way to educate your work force. If employees know disability information is confidential, they will be less likely to ask.
You can also designate in your handbook who an employee should speak with in the event an accommodation is needed. Employees may feel as though they have to share their need with the boss, but it is a smart policy to have employees instead discuss the issue with an HR manager or department. HR personnel should be more familiar with the ADA and its requirements. If needed, the HR personnel can then share the information with necessary parties.
The ADA safeguards fairness for all in the work place. By knowing how to discuss the topic appropriately and lawfully, you will ensure that no employee feels slighted by another’s reasonable accommodation, as well as protecting the privacy of the employee requiring the accommodation. As with all employment issues, if a question arises which you or your HR professional is unsure how to answer, contact legal counsel before you act.
Preston Clark Worley is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Worley concentrates his practice in employment law, land development, telecommunications, real estate and affordable housing. He is located in the firm’s Lexington office and can be reached atpworley@mmlk.com or at (859) 231-8780.
This article is intended as a summary of state and federal law and does not constitute legal advice.
New Administrator’s Interpretation Could Expand FMLA Coverage
Under the Family Medical Leave Act (“FMLA”), eligible employees are provided up to twelve weeks of unpaid, job-protected leave per year. Eligible employees can take FMLA leave for, among other things, the birth and care of a newborn child. Although the FMLA broadly defines a “son or daughter” under this provision to include a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis”, it does not expressly confirm whether employees may take leave to care for a son or daughter over the age of eighteen.
In reality, many parents remain the responsible caregiver to an adult child who cannot care for themselves due to a mental or physical disability. For these parents, the age of eighteen does not signal the end of their care duties; indeed, the care they provide may continue for many more decades.
The Department of Labor (“DOL”) recently issued an Administrator’s Interpretation wherein it clarified that FMLA leave may be available for adult sons and daughters. In order to qualify for FMLA leave to care for an adult child, the adult child must; (1) have a disability as defined by the Americans with Disabilities Act (“ADA”), (2) have a serious health condition, (3) be incapable of self care due to his or her disability, and (4) be in need of care due to their health condition.
Prior to issuing this interpretation there was significant debate as to whether the adult child’s disability must have developed before the child reached age 18. The Administrator’s Interpretation now clarifies that the age of onset of the disability is irrelevant. Additionally, the Interpretation reinforces that the ADA, as amended in 2008, must be used to when defining “disability.”
The Administrator’s Interpretation will certainly lead to more leave requests for employees seeking time off to care for adult children with special needs and employers should be prepared to accommodate employees under the new Interpretation. Accordingly, employers would be well-served to review this Administrative Interpretation and to update policies and manuals as necessary to become compliant. In particular, employers should give special attention to ensure that the adult child triggers all four elements before a leave is approved.
W. Chapman Hopkins is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Hopkins concentrates his practice in litigation, with a focus on employment, business, and equine law. He is located in the firm’s Lexington office and can be reached at chopkins@mmlk.com or at (859) 231-8780.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
Employment Screening: Medical Inquiries and Examinations
A number of federal and state laws protect employees from discrimination and prohibit the employer’s use of discriminatory tests and procedures to select such employees. These laws are imperative to ensure that the rights and interests of citizens are protected. What happens, however, when an employer has no discriminatory intent, but simply needs to determine whether an applicant is physically able to perform the job duties necessary for a particular position?
The answer depends upon the stage of application and employment. Under federal law, an employer’s ability to legally make medical-related inquiries or to require medical examinations is analyzed in three separate stages. The first stage is the “pre-offer phase,” which occurs prior to any offer of employment from the employer. Importantly, the Americans with Disabilities Act (ADA) prohibits disability-related inquiries and medical examinations during the pre-offer phase. The next stage is the “post-offer, pre-employment” phase. At this stage, the employer extends a conditional job offer to the applicant, but the applicant has not yet commenced employment. The final phase is where the employee commences employment with the employer.
The determination of each employment or application stage, as well as the corresponding analysis required for each stage, is extremely fact-specific. The best course of action is adequate consultation and preparation beforehand to ensure that no inquiry or request violates the ADA or any other applicable law. To that end, McBrayer, McGinnis, Leslie & Kirkland, PLLC provides our business clients with a wide variety of employment law services, including consultations and training for HR staff, management staff, and owners.
Brittany Blackburn Koch, Esq., is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. Ms. Koch has served in numerous public service roles, including representation for Fayette County Bar Association Domestic Violence Pro Bono Advocacy Program. She is actively involved in various organizations and committees, including the Board of Directors for Court Appointed Special Advocates (CASA), Young Professional Committee of Lexington Public Library Foundation, Fayette County and Kentucky Bar Associations, and Centre College Alumni Association.
She may be reach at bkoch@mmlk.com or at (859) 231-8780, ext. 300.
Looking at the EEOC’s Draft Strategic Enforcement Plan
Last month, the U.S. Equal Employment Opportunity Commission’s (EEOC) released a draft of its Strategic Enforcement Plan (“SEP”). The SEP is intended to, amongst other goals, establish priorities for the EEOC in the coming years. The draft included five broad nationwide priorities, as follows:
1. Eliminating Systemic Barriers in Recruiting and Hiring – Specifically, the draft highlights facially neutral hiring practices, which in practice, adversely impact protected groups (e.g. racial and ethnic minorities, older workers, women and applicants with disabilities). Examples expressed in the draft include: hiring or recruiting practices which have the effect of channeling or steering individuals into specific jobs due to their status in a particular group; restrictive application processes; the use of pre-employment screening tools such as date of birth screens in online applications; and other exclusionary policies and practices.
2. Protecting immigrant, migrant and other vulnerable workers – The focus here is on workers who may be unaware of their rights under equal employment laws, and the expressed intent is to target disparate pay, job segregation, harassment against these groups, and trafficking, as well as discriminatory language policies that may prevent certain workers from learning their employment law rights.
3. Addressing Emerging Issues – The draft SEP reiterates the EEOC’s suitability to tracking and promoting awareness for emerging discriminatory trends, and specifically lists a few emerging issues that it intends to target. These include the following
a. ADA Defenses – The application of defenses to the Americans with Disabilities Act such as undue hardship, direct threat and business necessity defenses.
b. LGBT Discrimination – Coverage for lesbians, gay, bisexuals and transgendered individuals under the sex discrimination provisions of Title VII.
c. Pregnancy Discrimination – Accommodating pregnancy when women have been forced onto unpaid leave after being denied accommodations routinely provided to similarly situated employees.
4. Preserving Access to the Legal System – The EEOC very clearly intends to target policies and practices which impede its investigative or enforcement efforts, or which discourage or inhibit individuals from exercising their rights under employment discrimination statutes. Examples of such practices may include overly broad waivers of liability and retaliatory action.
5. Harassment – This is always a focus of the EEOC, however, the SEP indicates some recognition that employers and employees may struggle with how to prevent and respond to harassment in the workplace. The EEOC appears focused on a re-vamped national education and outreach campaign.
The recent draft SEP provides some important and useful guidance for employers regarding what the EEOC will pay attention to in the coming years. It also provides a good reminder to evaluate, or re-evaluate, your company or organization’s policies and practices to make sure that it won’t become an EEOC target. If there are any doubts that the EEOC has set its sights on topics highlighted in the SEP, several new EEOC lawsuits involving pregnancy discrimination – one of the emerging issues described above — have emerged over the last two months. Check back on Wednesday, November 7th for an overview of these cases, and a discussion of whether your company needs to re-evaluate your pregnancy policies and practices.
Ryan Colleen Daugherty is an associate and member of the firm’s Litigation group. She focuses on employment and other commercial litigation, as well as estate administration and planning matters. She can be reach at rdaugherty@mmlk.com or at (859) 231-8780.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
Workplace Politics: Cooling the Debates
With the Presidential election just around the corner, employees may be talking about a lot more than gossip around the water cooler. Given the argumentative nature of politics, every employer should be listening for potentially volatile discussions, with a goal of keeping the workplace comfortable and free of hostility this election season.
Private employers actually have a lot of latitude when it comes to limiting speech and expression – especially when it threatens the daily operations of the business. When you mention limiting speech, everyone naturally references their First Amendment rights. The protection of free speech afforded in the First Amendment applies to government censorship, leaving private employers free to apply their own restrictions in the workplace. Public company employees are generally more protected by the First Amendment than private, due to public scrutiny and industry regulations. In contrast, private employers can control employee work time activity, including any political speech or activity, especially if it interferes with work performance. Employers may also restrict employees from using company resources for political communications, including computers, internet and cell phones.
The National Labor Relations Act (“NLRA”) does provide one major avenue of protection for private employees that employers should take into consideration. Section 7 of the NLRA protects employee speech when it is concerted and specific to a work related matter. Employee speech is concerted if it represents more than one employee, engaged in an activity to improve conditions of their employment such as wages, hours or other terms. There are also state specific laws and court decisions that address political speech and activity at work. These applications vary from state to state, and most pertain to off-duty activity, which cannot be restricted, but employers should be aware of their implications as well.
Even though there is no law specifically prohibiting employment discrimination on the basis of political affiliation, it can be generally protected under Title VII of the Civil Rights Act and the Americans with Disabilities Act, along with a host of other federal, state and local laws. Employers are prohibited from discrimination, harassment and retaliation, which often spills over to encompass political speech, because politics are fundamentally infused with issues that cross the boundaries of race, national origin, sex and religion, etc. Regulating workplace political activity and speech is reasonable, but there are still legal pitfalls to be aware of:
- All employees must be given time to vote freely
- Managers need to be aware of discussions that lead to conflicts involving protected classes; race, sex, national origin, religion etc, which can turn into hostile work environment claims.
- Enforcement of policies regulating political speech should be consistent, regardless of viewpoint or lack of a legal threat.
All employers should strive to create a neutral workplace, providing a safe environment where employees feel free to express themselves, not stifled by their employer or other employees. Casual discussions regarding politics can foster this freedom of expression, and positive working relationships, which are crucial for employee morale and retention. Healthy discussions can be good for the workplace as long as they do not interfere with productivity or cause employee problems.
Employers do need to take precautions and consider what is best for their business, imposing certain limits on employee activities and speech is a sensitive undertaking, which deserves the attention of legal counsel — to avoid adopting overboard restrictions or creating adverse reactions within the workforce. Setting reasonable parameters through employee policies is always a solid safeguard. However, a complete ban on political discussions is very hard for employers to regulate. Measures can be put in place to protect the company and employees from political discussions that could potentially lead to trouble. When developing a policy that regulates employee speech, it is important to think about all of the ways in which employees engage with one another; including the use of company resources, such as smartphones and emails. Regulating these mediums for sending political messages can be an effective way to curb political debates. Check back on Friday, October 5th as we continue this discussion.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
School’s Out for the Summer!: Important Employment Law Considerations when Hiring Interns and Graduates
Spring is here, and along with the change in season comes a flurry of graduation announcements, parties, and for employers, a flurry of applications and resumes from recent high school and college graduates. Recent graduates and interns provide a wealth of talent for many employers, and often become a core part of their operations and strategy. However, there are a few employment law considerations that must be understood by a company’s HR representative, and really, everyone involved in the hiring process, when advertising, hiring and determining wages for your Spring hires.
Advertising for Talent – High School Diploma Requirements, Potential Violations of the Americans with Disabilities Act?
Recently, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued an Informal Discussion Letter (“EEOC Letter”)[1] which opined that employers who require high school diplomas as a minimum standard for job applicants, and who often advertise as such, may be in violation of the Americans with Disabilities Act, because they screening out individuals who are unable to graduate because of a learning disability. Though Informal Discussion Letters give guidance regarding a particular inquiry and are not binding precedent, this letter serves as a wake-up call for employers of skilled and unskilled workers alike, who have long considered a high school diploma requirement to be a minimal, achievable and useful standard to ensure that its workforce possesses basic reading, writing and math skills.
The Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq. (“ADA”), is applicable to employers who employ more than fifteen (15) employees, and prohibits employers from discriminating against a qualified individual – those who can perform the essential functions of the employment position with or without reasonable accommodation – on the basis of his or her disability, during all stages of the employment relationship, including throughout “job application procedures;” during the “hiring, advancement, or discharge of employees;” and with regard to “employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S. C. 12111(8) and 12112. A disability is defined with the ADA as a “physical or mental impairment that substantially limits one or more major life activities of such individual” [generally including caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working]; or “a record of such an impairment;” or “being regarded as having such an impairment”. 42 U.S.C. 12102.
According to the recent EEOC Letter, an employer may still apply the high school diploma requirement (and presumably other degree or certification requirements) if it can demonstrate that such a requirement is “job related and consistent with business necessity,” which essentially requires a showing that the functions of the particular job position cannot easily be performed by someone who does not have a high school diploma. For example, for a legal secretary, who must possess significant reading, writing, word processing, and math skills to perform such a job, a high school diploma requirement may be deemed “job related and consistent with business necessity,” but the same may not be true for a grocery bagger, hair stylist or delivery driver, who may not utilize the same skills taught in high school as a part of his or her job functions.
In light of this letter, and the reality that the EEOC may soon be inclined to apply this new position in the right case, it is prudent for employers to take another look at its job advertisements and applications to determine: (1) whether a high school diploma is actually essential to the job position; (2) what skills taught in high school are actually required for the position; and (3) how they can revise their job advertisements and applications to reflect the skill requirements necessary to the particular job, rather than a threshold diploma requirement. It is also advisable to re-train management to ensure that they are not discriminating against applicants with learning disabilities who can perform the essential job requirements with or without reasonable accommodation, but who have not been able to achieve a high school diploma. While an employer is not required to prefer the learning disabled applicant over other better qualified applicants, it must consider the applicants true ability to perform essential job functions through demonstration of skills, work history considerations, etc., in lieu of a strict high school diploma requirement.
It is recommended that you consult with counsel before advertising for a position that requires a high school diploma or other educational degree or certification.
Interviewing and Hiring Talent – Hiring “Recent Graduates,” an Age Discrimination Concern?
Advertisements for job positions seeking “recent graduates” of high school or college, may implicate an age discrimination concern, because such language discourages those over forty (40) from applying. Though in recent years, there has been an upsurge of non-traditional students seeking to fulfill their graduation requirements, or seeking advanced degrees to increase employability, older individuals are still less likely to fit into the category of “recent graduate”.[2] As such, this or similar terms might be worth avoiding when advertising a job position. It is equally important that an employer’s HR representative, or other employees involved in the hiring process, understand that certain questions or discussions during the application or interview process – How old are your children? Do you have grandchildren?, etc. — could also create a perception that an applicant is being discriminated against due to his or her age.
The Age Discrimination Act of 1975, enforced by the Civil Rights Center, prohibits discrimination on the basis of age in programs and activities that receive federal financial assistance, and the Age Discrimination in Employment Act of 1967 (“ADEA”) protects certain applicants and employees 40 years of age and older from discrimination on the basis of age. 29 U.S.C. §6101 et seq.; 29 U.S.C. §621 et seq. The ADEA, which is enforced by the Equal Employment Opportunity Commission (“EEOC”) applies throughout the employment process – hiring, compensation, promotion, discharge – and applies to the conditions or privileges of employment.
While the ADEA does not expressly prohibit asking an applicant for his or her age, such requests, or requests for information which indicates age, are closely scrutinized by the EEOC, because such questions indicate a possible intent to discriminate based on age. In order to avoid such implications, it is important that an employer’s HR representative, as well as all employees involved in the hiring process, are adequately trained, aware and sensitive to certain questions and topics of discussion that could be perceived as designed to discriminate on the basis of age. If an age inquiry is necessary – perhaps to complete a criminal background check or for other lawful purposes – an employer may wish to wait until after hiring the employee to request that information.
If you have concerns regarding whether your job advertisements, applications or hiring process could indicate intent to discriminate based upon age, you should contact counsel for advice regarding your company’s specific situation.
Paying Talent – Interns, Free Talent?
Interns are often a valuable resource for employers – from high school aged technical school interns, to college students trying to gain experience their chosen field, to law school students trying to gain valuable exposure to the practice of law – and in this still tender economic climate, many may be willing to work for free in exchange for a resume boost. However, it is important to consider whether this too-good-to-be-true deal is a violation of Federal employment law that could put your company at risk.
Pursuant to the Fair Labor Standards Act (“FLSA”), individuals who “suffer or [are] permit” to work must be compensated for the services he or she performs for an employer. 29 U.S.C. 203(e) (1). More often than not, interns – at least in the “for profit” public sector[3] – must be paid at least minimum wage plus overtime compensation above forty hours per workweek. When determining whether the internship position for which you wish to hire may be uncompensated, the overarching determination is whether the intern will be serving his or her own interest in receiving training or instruction, or if the intern is benefitting the employer. Walling v. Portland Terminal Co., 330 U.S. 148, 152-153 (1947).
According to the U.S. Department of Labor’s Wage and Hour Division, six (6) questions have been deemed applicable to this determination, and include:
- Is the internship similar to training that would be given in an educational environment?
- Is the internship experience for the benefit of the intern?
- Does the intern displace regular employees?
- Does the employer derive any immediate advantage from the activities of the intern?
- Is the intern entitled to a job at the conclusion of the internship?
- Does the intern understand that he or she is not entitled to wages for the time spent in the internship?
Regarding the first criteria, if the internship occurs in a classroom-like setting, rather than within the employers normal operations, and if the skills learned are applicable to many employers – not just the one providing the internship – it is more likely that the intern may be exempt from the FLSA’s wage and overtime requirements. This also makes it more likely that the internship benefits the intern, rather than the employer. Also, if the intern’s activities do not result in any profit to the business (or related networking or client relations gain), if the intern is not displacing a regular employee, and if the interns activities are closely supervised by existing employees or if the intern essentially shadows an existing employee in his or her job, it is more likely that an unpaid internship is appropriate. Finally, it is important that an unpaid intern understand that he or she is not entitled to compensation and that he or she cannot expect employment at the conclusion of the internship. Such an arrangement is considered a trial period or training period for the employer, and the intern will be considered an employee subject to the FLSA’s wage and hour requirements.
If you are considering hiring unpaid summer interns, you should first consult with appropriate counsel.
Conclusion
These considerations should not deter you from hiring graduates this Spring. Interns, recent grads and educated employees in general can be a great asset to your business. However, it is important that you consider whether your advertisements, applications and hiring procedures may expose your business to liability. Typically small changes and training can go a long way towards protecting your company from the potential claims discussed above.
Ryan Colleen Daugherty is an associate and member of the firm’s Litigation group. She focuses on employment and other commercial litigation, as well as estate administration and planning matters. She can be reach at rdaugherty@mmlk.com or at (859) 231-8780.
[1] A copy of the letter can be viewed at: http://www.eeoc.gov/eeoc/foia/letters/2011/ada_qualification_standards.html.
[2] Maggie Jackson, Taking the Next Step, Boston Globe, September 13, 2009, at 1, available at http://www.boston.com/jobs/news/articles/2009/09/13/sour_economy_prompts_more_older_adults_to_return_to_school/ (“By 2007, more than a third of people studying for an associate’s or higher degrees were 25 and older. By 2017, the ranks of these older students are expected to grow 20 percent, according to the US Department of Education.”)
[3] Under certain circumstances, the FLSA makes an exception for those who volunteer to work for a state or local governmental agency or for certain religious, charitable, civic or humanitarian non-profit organizations. However, when determining whether your non-profit may hire unpaid interns, you should first consult with counsel.
