JAN has been a great partner to HR That Works Members for years. They just re-launched their Blogsite. You are encouraged to share your accommodation story. To learn more go to http://askjan.org/blog/.

The Court of Appeals for the Fourth Circuit recently upheld an employee’s termination because the requested religious accommodation would result in an undue hardship on the company. In EEOC v. Thompson Contracting, Grading, Paving & Utilities, Inc., the EEOC brought suit against the company on behalf of a dump truck driver whose religious beliefs prevented him from working from sunrise to sunset on Saturday Sabbath. As an accommodation, the employer offered to allow the employee to swap shifts and use paid personal leave for the Saturdays he was unable to work. After missing three Saturday shifts, the employer terminated the dump truck driver, and the EEOC sued on his behalf. The EEOC argued that the company had three possible reasonable accommodations: 1) it could have hired another driver to perform the Saturday work; 2) it could have created a pool of substitute drivers from its current employees in other positions; or 3) it could have transferred the dump truck driver to the position of general equipment operator. The trial court ruled in favor of the employer, and the Court of Appeals affirmed this decision. In so ruling, the Court of Appeals held that excusing the dump truck driver from Saturday work would impose more than a de minimis cost to the company, resulting in an undue hardship on the conduct of its business. The Court of Appeals also rejected the proposed transfer to another position as the EEOC failed to put forth any evidence to show that the company reasonably believed that the dump truck driver would have accepted a transfer.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).

Upon receiving a request for accommodation under the ADA, when the disability and/or need for accommodation are not obvious, an employer is permitted to ask for medical documentation from an employee. The purpose for requesting this documentation is to assist the employer in determining if the individual has an ADA disability by learning about the nature of the disability and the individual’s functional limitations. Of course, there is no requirement under the ADA to obtain medical documentation to grant an accommodation and often it is unnecessary. Employers are encouraged to focus less on who has a disability and more on making accommodations that are reasonable and effective.

Medical documentation often establishes the need for long-term accommodations for an employee who has a disability of an extended or lifelong duration. An example would be an employee with diabetes who needs a flexible work schedule to receive weekly dialysis. The accommodation of a flexible schedule could be needed indefinitely over the term of the individual’s employment and it is likely that the individual’s medical condition and/or need for accommodation will not change over time. Employers sometimes ask JAN Consultants if updated medical documentation can be requested annually from employees who are receiving long-term accommodations for ADA established disabilities. The stated purpose for such a request is to “recertify” an employee’s need/qualification for an accommodation. The following questions address this issue.

• Can an employer annually request medical documentation from employees who are receiving long-term accommodations?

Requesting annual medical documentation would not be prudent under the ADA. Where reasonable medical documentation that establishes an ADA disability was provided by an employee for the purpose of obtaining an accommodation, an employer will not have cause to request updated information on an annual basis. According to the Equal Employment Opportunity Commission (EEOC), an employer cannot ask for documentation when the disability and the need for reasonable accommodation are obvious, or the individual has already provided the employer with sufficient information to substantiate an ADA disability.

• What if there is a change in limitations and/or accommodations related to the same ADA disability?

If the medical information provided previously sufficiently established the existence of a long-term impairment that substantially limits a major life activity, then EEOC says that an employer cannot ask for documentation that the person has an ADA disability. However, the employer may ask for reasonable documentation that addresses the specific need for the accommodation (if the need is not obvious).

• Is an individual with a disability who is receiving a reasonable accommodation entitled to receive it forever?

While many accommodations are provided long-term, the EEOC has informally stated that an individual with a disability receiving a reasonable accommodation is not necessarily entitled to receive it forever. There are several reasons why an employer may stop providing a specific accommodation, or change the type of reasonable accommodation being provided. For example, a person’s disability may no longer necessitate a reasonable accommodation, or the accommodation might become an undue hardship on the employer. It’s important for the employer and employee to discuss any changes in accommodations. If an accommodation becomes an undue hardship, it may be possible to identify an alternative solution. JAN Consultants can help identify alternative accommodation solutions. Visit AskJAN.org for more information.

To learn more about requesting medical documentation from employees under the ADA, see questions 6 – 8 in EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA. Also, JAN offers many resources related to requesting medical documentation, determining disability, and providing and maintaining job accommodations. Examples include:

• Five Practical Tips for Providing and Maintaining Effective Job Accommodations
• How to Determine Whether a Person Has a Disability under the Americans with Disabilities Act (ADA) (Updated)
• Medical Inquiry in Response to an Accommodation Request

- Tracie DeFreitas Saab, M.S., Lead Consultant for the Job Accommodation Network (JAN)

Holiday Party Best Practices

Eggnog, latkes, old friends, parties – and a whole lot of beveraging! The holiday season is here! On behalf of everyone at HR That Works, let us be the first to wish you a safe and happy holiday!

Rule #1 – make sure everyone gets home safe! As the party host you in fact have liability if you fail to do so.

To protect yourself and others follow these best practices:

• Make sure that attendance at the party is voluntary.
• Hire bartenders who are trained to spot intoxicated revelers and how to handle them.
• Provide non-alcoholic beverage options.
• Provide each guest with a limited number of drink tickets instead of an open bar.
• Have real food – not just chips and pretzels – served whenever alcohol is available.
• Stop alcohol service at least an hour before ending the function.
• Confront intoxicated guests immediately and cut them off; don’t wait until they are ready to leave the party.
• Don’t inquire of an apparently impaired guest whether they think they’re able to drive home. They can’t.
• Have a taxi service available for any guest who requires one.
• Call a friend or family member to pick up intoxicated guests.
• Arrange for discounted rooms at the event location (if possible) or a nearby hotel.

Don’t forget to have a fun party. Think Mr. Fezziwig!

Accommodating Religious Needs

The holiday season makes an ideal time to focus on the law regarding religion in the workplace. It’s also a great time to celebrate our religious differences! Title 7 of the Civil Rights Act of 1964 prohibits discrimination based on religion. There has been an increasing trends in these claims over the past years with over 4,000 claims being filed in 2011. Not surprisingly, many of these claims are combined with national origin discrimination allegations (i.e. someone alleges discrimination because they’re of Arab origin, as well as Muslim).

The EEOC makes this point about what a religion is:

“In most cases, whether or not a practice or a belief is religious is not an issue. However, the EEOC defines religious practices to include moral or ethical beliefs as to what’s right and wrong, which are sincerely held with the strength of traditional, religious views. The fact that no religious group espouses such beliefs, or that the religious group to which the individual professes to belong might not accept such belief, will not determine whether the belief is a religious belief of the employee or prospective employee. The phrase ‘religious practices’ includes both religious observances and practices.” Also, bear in mind that:

• It’s unlawful for an employer to fail to accommodate reasonably the religious practices of an employee or prospective employee, unless the employer demonstrates that accommodation will mean undue hardship in conducting its business.
• An employer may not ask about an employee’s religious background unless justified by business necessity.

The EEOC’s guidelines on religious discrimination can be found by clicking here. Here is a good FAQ on it too.

Here’s an EEOC memo on accommodating religious expression.

Lastly, here’s a great link to the religious accommodation practices at the University of Missouri.

We love the Job Accommodation Network. They are a true resource for employee and employer alike. I encourage you to check out their excellent and free video series by clicking here. Archived titles include:

•     ADA Update
•     Managing Emotions in the Workplace: Victims, Villains, and Heroes (by yours truly)
•     Providing Reasonable Accommodations to Employees with Mental Health Impairments
•     Understanding and Accommodating Mobility Impairments in the Workplace
•     Profit by Investing in Workers with Disabilities

Upcoming titles include Harnessing the Accessibility Features of Mobile Devices for Use as Reasonable Accommodations, Current Events in Accommodation, Learn More About Accommodations for Executive Functioning, and more.

In the case of Jones v. Nationwide a broker was fired because he failed his Series 65 exam on numerous occasions and never asked for any kind of disability accommodation until he was about to be fired. The court said the company was in their rights to not allow additional time as an accommodation to take the exam.  Because he was required to be licensed to do his job and because he never asked for an accommodation in a timely matter the employer won the case. Note he was also offered a transfer to a lesser job which he declined.

Return to Work (RTW) and Stay at Work (SAW) programs are part of a business’ strategy to retain valued employees and to enhance the productivity of its workforce. “The goal of a return-to-work program, sometimes called a transitional duty program, is to make job changes or provide job accommodations that return individuals to work who are absent for workers’ compensation or disability-related reasons.”[1]

As with workplace accommodation programs, a RTW program should have clear written policies articulating each party’s responsibilities. Accurate job descriptions including the physical demands of particular essential functions should also be developed. This helps everyone in the process (e.g., doctors, rehabilitation staff, and accommodation specialists) understand the job requirements. A good understanding of the job demands and the employee’s limitations and abilities is the starting point for determining if effective job accommodations will enable the employee to return to or stay at work while still recovering from injury. Effective job accommodations insure that the employee returns to work as soon as possible without risk to the employee or employer.

Of the employers who called JAN for technical assistance, most (82%) were doing so to retain a current employee.[2] Thus, most of JAN’s publications contain accommodation solutions that could be generalized to a RTW or SAW situation. JAN also offers a number of examples specific to RTW.

For instance:

Situation – A warehouse employee was transitioning back to work with lifting restrictions after being injured by falling boxes of product.

Accommodation Solutions:

• Provide overhead structure for lifting devices;
• Place frequently used tools and supplies at or near waist height;
• Provide low task chairs, stand/lean stools, and anti-fatigue mats;
• Provide compact lifting devices to push and pull supplies and tools from storage;
• Make wheelchairs, scooters, industrial tricycles, or golf carts available; and
• Provide aerial lifts, rolling safety ladders, and work platforms.

The full publication, Fact Sheet Series: Job Accommodations for Return to Work is available for download. If you need additional guidance in identifying a device, or need information on where to buy the device, please call one of JAN’s Consultants.

Below are resources to learn more about developing your company’s RTW or SAW program:

• U.S. Department of Labor’s Office of Disability Employment Policy Return to Work Toolkit
• Disability Management Employer Coalition (DMEC)
• Return to Work Matters
• Society for Human Resource Management (SHRM) Disability Employment Resource Page (available to nonmembers and members alike)

- Louis E. Orslene, MPIA, MSW, Co-Director

 - Return to Work: A Snapshot (Part 2 of a Continuing Series, Read Part 1)

As more than 80% of inquiries to JAN involve retention of a current employee, the importance of contributing technical assistance to stay at work and return to work programs is vital. Both practices ensure valued employees are retained, productivity is maintained, and recruiting and on-boarding costs are saved. This is the second article in a series about these important practices in the workplace. The following article results from a collaboration between JAN and Return to Work Matters (RTW Matters). RTW Matters is a practical online resource for employers and disability professionals. Look for the Join Now link on the left hand side of the RTW Matters homepage.

He Ain’t Heavy…He’s My Employee

In the spring of the year in 2008, on a cold and dreary day, a freezing rain fell to coat everything it touched. Dan had just parked the CDL class truck and was stepping down to move on to his next task. What Dan didn’t know was that the next task would be a trip to the emergency room. When exiting the truck, Dan fell down and landed on his knee, causing a tear that eventually lead to a surgical repair. Two months later, Dan was told he could go back to work, but would have some temporary restrictions. Although his employer didn’t have anything he could do within his physical capacity, they would try and “come up with something.” For the next seven months, Dan remained at home and collected compensation pay at two-thirds his salary.

Although he made use of the time by attending physical therapy and follow-up doctor appointments, Dan was getting bored and a little worried about whether he would ever return to his job. Dan missed the gang at work and would frequently stop by for a chat and any news on possible light duty assignments. Finally, an opportunity came up for Dan to return to work, and even though it was limited to four hours a day of snow plowing, he happily accepted. Eventually, Dan was released to full duty and returned to his heavy equipment mechanic position, but to everyone’s dismay, Dan’s knee started to give him problems within just a few weeks. When the MRI showed another tear, a second surgical repair was performed and once again, Dan was out of a job.

In desperation, Dan scheduled an appointment to talk with the company’s return to work coordinator, who immediately contacted the ergonomic specialist to schedule a meeting for the two of them to meet with Dan and his supervisor to form a return to work strategy. A job analysis was completed, which determined that the physical ability to kneel and squat were essential to performing the heavy equipment job. Unfortunately, these were the very same physical demands that Dan was restricted from doing on what was now a permanent basis. This could have been the end of the story except that the people involved were a bunch of very determined and creative folks.

An ergonomic evaluation of the work area was completed and another meeting was held to discuss a plan. The only thing keeping Dan from returning to his job was his inability to maneuver and work on the equipment. So, was there another way of maneuvering? Well, research would need to be done and budgets would need to be considered. Dan was told that they would let him know when they had some answers. During what Dan would say were some of the longest days of his life, he stayed home, earned less money and worried about his future.

Then came the day when Dan got the call, asking for him to come in to work for a meeting. The news was good. A hydraulic lift had been indentified that could be used to lift the work product to waist height. This allowed Dan to avoid the kneeling, squatting, and heavy lifting he was restricted from doing, while still allowing him to perform all the duties of his heavy equipment mechanic job. This job modification not only returned Dan to his full time job, it came with an additional benefit; the ability for other workers to use the lift, thereby preventing additional work injuries.

From the efforts of Dan and his supervisor, the ergonomic specialist and return to work coordinator, long term disability was prevented. This not only saved the employer money and a loss of production time by bringing on a new employee, it made them feel good that they had a part in doing the right thing by a valued employee. The other employees recognized the efforts of their employer, which instilled confidence that if they ever met with similar circumstances, they would be taken care of. For Dan, the benefits were huge. He could now go back to being a productive member of society and earn the money he was previously earning. For the community, the benefits were limitless: the return of a member to gainful employment and the prevention of unemployment side effects such as anxiety and depression, that affect the individual and family members. This case had many factors that led to its success, but most important was the great team collaboration, established partnerships, and good communication between the employee, supervisor, RTW coordinator, and all the other team players involved in the case.

The cost of the hydraulic lift? $2,667. The return of a valued employee? Priceless.

For more on lifting devices, the costs and benefits of job accommodation, and effective accommodation practices, contact JAN.

- Article by: Mary Harris & Shelly Frohrip, Contributors, Return to Work Matters.

ELK GROVE, CA — The California Department of Fair Employment and Housing (DFEH) announced today that Air Canada must pay more than $325,000 in damages after the company fired one of its customer service representatives because of her disability. The Fair Employment and Housing Commission (Commission) found that Air Canada failed to accommodate the employee’s disability and then fired her because she could not lift cargo – a job function customer service representatives rarely perform.

“Employers must attempt to find reasonable modifications that allow employees with disabilities to keep working,” said the Department of Fair Employment and Housing Director Phyllis Cheng. “Using non-essential job functions as a pretext to deny employment to persons with disabilities is unlawful in California.” 

The employee, Caroline Messih Zemaitis, worked as a customer service agent for Air Canada at Los Angeles International Airport from 1993 to 2007.  Starting in 2004, she held a clerical position in the cargo division that did not involve physical labor.  In 2005 and 2006, Ms. Zemaitis injured her back, shoulder, knee and wrist, and her doctor restricted her from performing such tasks as heavy lifting and repeated bending.  She was able to keep working in the cargo division with minor accommodations such as Air Canada’s provision of a telephone headset and heating pad, and time off for physical therapy.  

When Ms. Zemaitis became pregnant, her back condition worsened and she took a medical leave of absence for about a year.  She tried to return to work in 2007 when her doctor released her with restrictions similar to those she had before, but Air Canada refused to respond to her many communications.  Instead, Air Canada terminated Ms. Zemaitis’s because she could not lift cargo, a job function the airline’s customer service agents rarely perform.

The Commission found during this precedential decision that Air Canada had violated the Fair Employment and Housing Act. It ordered them to pay Ms. Zemaitis $102,737 in back pay, $19,720 in lost benefits, and $125,000 for emotional distress.  Air Canada must further reinstate and pay Ms. Zemaitis $54,784 in wages plus interest and pay the State a $25,000 administrative fine.  The airline will also have to post a notice about their liability and develop a policy and train management on reasonable accommodations necessary to allow disabled employees to continue working.

The California Department of Fair Employment and Housing (DFEH) today announced its largest-ever administrative award of $846,300 against electrical supplier Acme Electric Corporation for firing an employee because he had cancer.  Headquartered in Lumberton, North Carolina, Acme Electric is a division of Actuant Corporation, a Wisconsin diversified industrial corporation that operates in more than 30 countries.

Charles Richard Wideman worked for Acme Electric as western regional sales manager overseeing sales operations in the company’s largest territory from February 2004 to March 2008.   He developed kidney cancer in 2006 and prostate cancer in 2007.  Mr.  Wideman’s cancers required two surgeries and numerous cancer-related outpatient appointments.  The company immediately granted his two requests for time off for surgery and recuperative leave.  However, Mr. Wideman requested further accommodation for the travel limitation his cancers caused from June 2006 through April 2007.  Acme Electric refused to grant or even acknowledge these accommodation requests.  Instead, in December 2007, Mr. Wideman’s supervisor gave him an unfavorable performance evaluation, criticizing him for insufficient travel.  On February 28, 2008, ignoring Mr.  Wideman’s need for accommodation the preceding year and failing to take into account his dramatically improved job performance, Acme Electric fired Mr. Wideman, relying on the insufficient travel pretext. 

After a three-day hearing, the State’s Fair Employment and Housing Commission found Acme Electric violated the FEHA by failing to accommodate Mr. Wideman’s known travel limitation due to his cancers, failing to engage in a good faith interactive process, discriminating against Mr. Wideman because of his disability, and failing to take all reasonable steps necessary to prevent discrimination from occurring.  To compensate Mr. Wideman for his losses, the Commission awarded him $748,571 for lost wages, $22,729 for out-of-pocket expenses and $50,000 for the emotional distress he suffered.  In addition, the Commission ordered Acme to pay $25,000 to the State’s General Fund as an administrative fine.  Acme must further comply with posting, policy changes, and training requirements ordered by the Commission.

Employer lesson: You can’t ignore ADA restrictions simply because it’s a pain to comply with. Any employee with a disability has to perform, with or without accommodations. In this case, had ACME attempted to accommodate Mr. Wideman…and he still could not perform to standard, then there is no liability. To learn about accommodating employees with cancer go to http://askjan.org/media/canc.htm

 The U.S. Equal Employment Opportunity Commission (EEOC) has sued the Children’s Hospital Association for discriminating against a job applicant who needs an accommodation for her disability. The applicant was offered a job with the Colorado Children’s Healthcare Access Program, but the offer was withdrawn because of her fibromyalgia. Under the Americans with Disabilities Act employers must provide reasonable accommodations to an employee with a disability.

Click here to read more.