Disability/pregnancy practices – what not to practice

October 16th, 2018 by Robin Shea at Constangy


This blog was written by Robin Shea at Constangy, which authors our Model Policies and Forms for Georgia Employers and our New Jersey Human Resources Manual. You can find the original on their Employment & Labor Insider blog (which is one of our favorites and is excellent).

 

Employers, just say no to these disability/pregnancy practices!

Robin Shea

A new lawsuit filed by the EEOC is a good guide for employers on what not to do.

The Equal Employment Opportunity Commission has filed a class action lawsuit in federal court in New York against a group of senior care and nursing home facilities. The lawsuit -- which alleges disability and pregnancy discrimination -- was filed on Monday, so the defendants have not had a chance to respond to the allegations. Regardless of whether the allegations are true, the lawsuit provides a good roadmap for employers on what not to do.

DON'T automatically terminate an employee who reaches the end of his or her leave under the Family and Medical Leave Act and can't immediately come back to work. You may still have reasonable accommodation obligations under the Americans with Disabilities Act or the Pregnancy Discrimination Act. You need to work through those -- engaging in the interactive process with the employee -- before you start thinking about termination.

DON'T automatically terminate a new employee who needs leave. Same problem as with the previous "don't." Even though the employee isn't eligible for FMLA leave, the employee may be legally entitled to reasonable accommodation for a disability or pregnancy. The EEOC doesn't care what your "probationary employees" policy says.

DON'T have a "100-percent recovered" policy. A "100-percent recovered" policy says that an employee cannot return to work until the employee is free from any medical restrictions. In the view of the EEOC, these policies violate the ADA because they have no provision for reasonable accommodation in appropriate cases. For the same reason, these policies are a problem if an employee needs accommodation for pregnancy or a related condition.

While writing this blog post, I learned that the EEOC has filed two more class actions this week based on inflexible leave policies. That makes a total of three in one week. I would call this a "crackdown." The EEOC's press releases on the other two lawsuits are here and here.

DON'T deny reasonable accommodations because you perceive that the employee's condition is only "temporary." Since 2009, when the ADA was amended, many non-permanent medical conditions can be considered "disabilities" that are protected under the law. And pregnancy is, by definition, a temporary condition (well, unless you're Kate Gosselin, in which case pregnancy might be a permanent condition). The list of truly "temporary" conditions that you don't have to accommodate is getting shorter and shorter. It's best to assume that medical conditions are legally protected unless and until your employment counsel tells you otherwise.

DON'T be lax about the timing of your mandatory medical examinations. According to the EEOC's lawsuit, the nursing homes required new hires -- on their first day of work -- to fill out a very detailed medical questionnaire and to have a medical examination. In addition, employees were required to have medical examinations once a year after hire.

You can't do that with current employees!

Remember the ADA "three-phase" rule:

Phase One: Applicants. Pre-offer, an employer cannot request ANY medical information, or even any information that is likely to elicit information about a disability (such as, "How many days did you miss work in your previous job because of illness?"). There are a few exceptions to this rule, but they probably do not apply to you.

Phase Two: Offerees. Post-offer, pre-employment, the employer can ask for just about any medical information it wants (including all the stuff that the employer in this case allegedly asked for), as long as it asks for the same information from all offerees in the relevant job category. If the information provided indicates that a particular offeree may not be able to do the job or may need a reasonable accommodation, it is legal for the employer to follow up with that one offeree.

Phase Three: Employees. Once the individual starts work, the "window of opportunity" slams shut, and the employer cannot request any medical information unless it is job-related and consistent with business necessity, requested in connection with a voluntary wellness program, or required by another federal law (including, for example, U.S. Department of Transportation regulations). 

The first problem with the employer in this case (assuming that the EEOC's allegations are correct) is that the medical questions and examinations took place on the employees' first day of work. The employer could have done these things if it had done them a little earlier -- post-offer and pre-employment.

The second problem (again, assuming that the EEOC's allegations are correct) is that the employer required current employees to have annual medical examinations that were not "job-related and consistent with business necessity." Presumably, these medical exams were not part of a voluntary wellness program or required by another federal law, either.



Related posts

Workplace Christmas Quiz (this is legit and will secondarily eat up some time before you get to go home)

This blog was written by Robin Shea at Constangy, which authors our Model Policies and Forms for Georgia Employers and our New Jersey Human Resources Manual. You can find the original on their Employment & Labor Insider blog (which is one of our favorites and is excellent).   Workplace ...

Depression – what can an employer do?

Depression is an illness. Depression can be treated. Depression should not be ignored. And the holidays can carry lots of triggers: sentimental memories, loneliness, less sunlight, changes in diet/routine, alcohol at parties, end-of-year timelines at work, unrealistic expectations. What can...

Disability – Dr. or employee approved?

This blog was written by Fiona W. Ong at Shawe Rosenthal, author of our Maryland Human Resources Manual. You can find the original blog and their E-Updates on their website.  Listen to the Employee, Not Just the Doctor, Regarding the Employee’s Disability Fiona W. Ong The U.S. Court of A...

Bad mix – accommodation request and firing

This blog was written by Robin Shea at Constangy, which authors our Model Policies and Forms for Georgia Employers and our New Jersey Human Resources Manual. You can find the original on their Employment & Labor Insider blog (which is one of our favorites and is excellent).   This ADA a...

I'll take "ADA in 5s?" please Alex

David K. Fram, director of the National Employment Law Institute's (NELI) ADA & Equal Employment Opportunity Services, says there are five words every supervisor should use when it comes to the ADA and reasonable accommodations: "How can I help you?" In Katie Clarey's article for HR Div...

Being at work full time is not an essential function of a job?

This blog was written by Fiona Ong at Shawe Rosenthal, author of our Maryland Human Resources Manual. You can find the original blog and their Labor & Employment Report newsletter on their website.    Full-Time Presence at Work Is Not Necessarily an Essential Function of the Job? F...

Treating service animal requests (always treat the animal)

Service animal pop quiz (yes/no): The ADA permits assistance dogs to be with their person where members of the public can go (yes) The ADA requires service dogs to be professionally trained (no) Minature horses are covered under the ADA and Great Danes can be the size of miniature horse...

Job tasks and essential functions under the ADA

This blog was written by Richard R. Meneghello and Myra K. Creighton at Fisher Phillips, which authors several of our resources. You can find the original ADA Flurry II article, the original ADA Flurry I article and their On the Front Lines Workplace Law Newsletter (which is excellent) on their w...

No, you can't sleep on the job

This blog was written by Shelby Skeabeck, formerly of Shawe Rosenthal, author of our Maryland Human Resources Manual. You can find the original blog post here and their Labor & Employment Report newsletter (which is excellent) here.   No, You Can’t Sleep on the Job, Especially when it’s...

"We need to talk" isn't any easier to say than to hear

This blog was written by Mathew Parker at Fisher Phillips, which authors several of our resources. You can find the original here and their On the Front Lines Workplace Law Newsletter (which is excellent) here.   We Need to Talk: 5 Tips For Conducting Difficult Workplace Conversations ...

PS: PTSD IRL*

Obvious fact: you want to make sure your employees are taken care of. Not so obvious fact: some of them might be suffering from Post Traumatic Stress Disorder (PTSD). Possibly even shocking fact: your workers’ compensation plan may cover PTSD treatment. Want to learn more about PTSD in t...

Is the employee "disabled" under the ADA?

This blog was written by Richard R. Meneghello and Myra K. Creighton at Fisher Phillips, which authors several of our resources. You can find the original here and their On the Front Lines Workplace Law Newsletter (which is excellent) here.   Flurry Of Recent ADA Cases Can Be Instructive Fo...

What is the ADA?

This blog is an excerpt from our book An Employer's Guide to FMLA and ADA, authored by Nancy Van der Veer Holt at Ford Harrison LLP. For more state specific leave information, go to the Products tab above and subscribe to the Human Resources Manual for your state.   The Americans with Disab...

Why You Should Care About Employment Law

Common Pitfalls for Emerging Companies Founders of emerging companies are often first-time employers and find themselves having to wade through the dense patchwork of state and federal labor and employment laws. This can be a confusing undertaking that often requires legal counsel. However, th...

MeToo, avoiding women, and the modified Mike Pence Rule

This blog was written by Robin Shea at Constangy, which authors our Model Policies and Forms for Georgia Employers and our New Jersey Human Resources Manual. You can find the original on their Employment & Labor Insider blog (which is one of our favorites and is excellent).   Avoid wome...

Discrimination CHARGE! – Step 3 Cause or no cause, because you gotta do something

This blog was written by Kristin Gray at FordHarrison, which authors our "Hiring, Firing and Discipline for Employers" and "An Employer's Guide to FMLA and ADA". You can find the original blog post and their Legal Alerts on their website.   Help! I Just Received a Charge of Discrimination. ...

Discrimination CHARGE! – Step 2 Go Kim Possible for the investigation phase

This blog was written by Kristin Gray at FordHarrison, which authors our "Hiring, Firing and Discipline for Employers" and "An Employer's Guide to FMLA and ADA". You can find the original blog post and their Legal Alerts on their website.   Help! I Just Received a Charge of Discrimination. ...

Discrimination CHARGE! – Step 1 Don't panic, ask questions

This blog was written by Kristin Gray at FordHarrison, which authors our "Hiring, Firing and Discipline for Employers" and "An Employer's Guide to FMLA and ADA". You can find the original blog post and their Legal Alerts on their website.   Help! I Just Received a Charge of Discrimination. ...

Employers beware - what you say can and will be used against you

This blog was written by Darryl McCallum at Shawe Rosenthal, author of our Maryland Human Resources Manual. You can find the original and their Labor & Employment Report blog on their website.   Employers Beware: What You Say Can and Will Be Used Against You! Darryl McCallum Any H...

Holiday stew – ingredients for a happy and non-litigious holiday

Holiday stew – we all have our own recipe, but the base is almost always the same: booze, mistletoe and a generous pinch of unapproved time off. And be sure you don't have enough time to prepare or clean up. Join Gary Wheeler and Lori Mans for an hour as they provide the ingredients and know-h...

Election leave – employer's civic duty, migraine, or just wishful thinking (election, leave!)

This blog was written by Deidra Nguyen at Littler Mendelson, which authors our Model Policies and Forms for Maine Employers. You can find the original post and their Dear Littler (which is excellent) on their website.   Dear Littler: What is the Story with Employee Election Leave? Deidra...

FMLA leave before being eligible for FMLA leave

This blog was written by Thomas E. Reddin and Henry J. Thomas at Polsinelli. Polsinelli authors hrsimple resources in Missouri, Kansas and Illinois. You can find the original blog post and their labor and employment blog Polsinelli at Work (which is excellent) on their website.   Navigating...

No call/no show shows. No what about it.

No call. No show. Assume they quit. Find a replacement. Move on. Then who shows up but Ms. Nocall Noshow. Now what? Depends on what happened, your policy, potential laws (ADA? FMLA?), disabilities, stuff, junk. SHRM helps, with help from our author Fisher Phillips and long-time friend...

Notice: notices and forms for FMLA that were already expired now updated virtually unchanged

This blog was written by Fiona Ong at Shawe Rosenthal, author of our Maryland Human Resources Manual. You can find the original blog and their Labor & Employment Report newsletter on their website.    Time to Update Those FMLA Forms!!! Fiona W. Ong Finally! The new Family and Medi...

School-related parental leave does not mean you forge a note from your kid

This blog was written by Jason Plowman at Polsinelli. Polsinelli authors hrsimple resources in Missouri, Kansas and Illinois. You can find the original blog post and their labor and employment blog Polsinelli at Work (which is excellent) on their website.   Back to School Edition: School-...

Round up stew: sick leave, harassment, non-compete, etc.

This blog was written by Shennan Harris at Squire Patton Boggs. Shennan is a co-author of our Wages and Hours – An Employer's Guide. You can find the original blog post and their Employment Law Worldview on their website.   State Law Round-Up: New Sick Leave, Sexual Harassment Laws and Othe...

PTO on the house!

This blog was written by Kat Cunnignham, president of Moresource Inc., a member of the Missouri Chamber. You can find the original blog post on the mobile edition of Missouri Chamber's Missouri Business   Traditionally, most companies have offered a paid leave package to employees that diff...

No FMLA for pet's death

This blog was written by Fiona Ong at Shawe Rosenthal, our author of the Maryland Human Resources Manual. You can find the original blog post here and their Labor & Employment Report newsletter (which is excellent) here.   In a previous post about pet bereavement leave, I noted that t...

FMLA definitions

This blog is an excerpt from our book An Employer's Guide to FMLA and ADA, authored by Nancy Van der Veer Holt at Ford Harrison LLP. For more state specific leave information, go to the Products tab above and subscribe to the Human Resources Manual for your state. FMLA coverage for employers ...

FMLA - "leave" as in "leave the employee alone"

FMLA contains "leave", as in "the employee isn't at work" but also as in "leave the employee alone or else". See what the boundaries are to avoid the "or else" from one of our authors @Ogletree Deakins.

Paternity leave

What is paternity leave? Sometimes referred to as “family leave” or “parental leave”, paternity leave is an excused absence from work to care for and bond with a new child - whether by birth, adoption, or foster. This leave can vary in duration and may be paid or unpaid. Are employers requi...

Paid family leave: a growing trend

Legally mandated family leave policies have a relatively short history in the United States, and a requirement that the leave be paid is even shorter. In 1993, Congress enacted the Family and Medical Leave Act (FMLA) after finding that employees were having to choose between working and taking ca...

Carnac the Magnificent says – Politicussin

This blog was written by Aaron Warshaw at Ogletree Deakins, which authors our Model Policies and Forms for Tennessee Employers, Massachusetts Human Resources Manual, Colorado Human Resources Manual, and Employee Benefits – An Employer's Guide. You can find the original blog post and their Our Ins...

Biometrics in the Workplace

Biometric Compliance for Employers With many employers embracing new technology to achieve efficiencies in the workplace, companies using increasingly popular biometric programs must take steps to ensure that the use of these systems does not violate the law in several jurisdictions. Biomet...

Controlling the political speech of buttons*

This blog was written by Danielle Krauthamer and Setareh Ebrahimian at Fisher Phillips, which authors our South Carolina Human Resources Manual, Model Policies and Forms for Missouri Employers, Model Policies and Forms for Kansas Employers, and Workplace Safety and Health Compliance Manual. You c...

Cursing, surfing, weapons, gadgets – illegal, inappropriate or OK?

It happens in almost every workplace almost every day: somebody swears or is on an iffy website or is carrying a knife (or worse) or is using their own (not secure) phone or computer to send off a quick business email or text. So what is illegal, what is inappropriate and what is just not that...

Costumes, booze and the Great Pumpkin – beware the office Halloween party

This blog was written by Adam Gutmann at Cozen O'Connor, which authors our Minnesota Human Resources Manual, New York Human Resources Manual, and Pennsylvania Human Resources Manual. You can find the original post and their HR Headaches blog (good stuff) on their website. Halloween in the Work...

IL – Required expense reimbursement for your employees, not Bill Self

This blog was written by Peter Gillespie at Laner Muchin who are authors of our "Illinois Human Resources Manual". You can find the original blog post and their Fast Laner newsletter on their website.   Illinois Employers Should Review Expense Reimbursement Policies Peter Gillespie Ef...

Public disclosure of confidential information is easier than you think

This blog was written by Tina Syring at Cozen O'Connor, which authors our Minnesota Human Resources Manual, New York Human Resources Manual, and Pennsylvania Human Resources Manual. You can find the original post and their HR Headaches blog (good stuff) on their website.   Do You Know What ...

If religious accommodation and a flu shot both equal angst, is that the transitive or substitution property?

This blog was written by David Broderick at Littler Mendelson, which authors our Model Policies and Forms for Maine Employers. Dear Littler: Do We Have to Accommodate A Religious Objection to the Flu Shot? David Broderick at Littler Mendelson Dear Littler: I work in a health care setting...

Workplace shootings – 20 can-dos to prevent them

This blog was written by Debra Friedman, contributor to our New York Human Resources Manual, at Cozen O'Connor, which also authors our Pennsylvania Human Resources Manual and Minnesota Human Resources Manual. You can find the original post and their HR Headaches blog (good stuff) on their website...

If it's called a dress code, can I wear pants?

This blog was written by Natasha Sarah-Lorraine Banks at Fisher Phillips, which authors several of our resources.  When Strict Dress Codes Went Out Of Style: The Modernization Of Workwear “Every day is a fashion show, and the world is your runway.” – Unknown This modern-day old adage giv...

TN: Conceal and carry means post to prohibit or permit

This blog was written by William S. Rutchow at Ogletree Deakins, author of our Model Policies and Forms for Tennessee Employers. Ogletree also authors our Massachusetts Human Resources Manual, Colorado Human Resources Manual, and Employee Benefits – An Employer's Guide. You can find the original ...

Four-legged office mates and the pawternity policies they benefit

This blog was written by Danielle Krauthamer at Fisher Phillips, which authors several of our resources. You can find the original post and the On the Front Lines newsletter on their website.   Pawternity Leave: Are Employers Barking Up the Wrong Tree With Pet-Based Leave? We’ve all hear...

Background checks of the future are continuous

This blog was written by Spencer Waldron at Fisher Phillips, which authors several of our resources. You can find the original post and the Employment Privacy Blog (which is excellent) on their website.   How Much Do You Really Want to Know About Your Employees? The Growing Popularity of Co...

Prepare for saying "No" – you need to decide how to refuse service

This blog was written by Seth Ford and Matt Anderson at Troutman Sanders, author of the Georgia Human Resources Manual. You can find the original article and their HR Law Matters blog on their website.   A Plan for Saying No: How to Refuse Service Refusing to serve a patron is a hot topic...

List 10 up: What's the deal with employee handbook rules?

PODCAST Spend 20 minutes with Ruthie Goodboe from our author Ogletree Deakins as she discusses employer work rules and employee handbook policies and practices in the podcast What's the deal with employee handbook rules? List 10 up: covers union AND non-union workers employees raisi...

Should you give your employees a little Slack – or do they have enough already?

Are Your Employees “Slackers”? How Employers Should Handle Slack—The Increasingly Popular Instant Messaging Application Launched in 2014, Slack is the fastest growing business application in history. For those unfamiliar with this piece of technology, Slack is a cloud-based “team collaborati...

Zero tolerance for "zero tolerance" policies

This blog was written by Robin Shea at Constangy, which authors our Model Policies and Forms for Georgia Employers. You can find the original here and their Employment & Labor Insider blog (which is one of our favorites and is excellent) here.   Zero tolerance for "zero tolerance" polic...

New rules for work rules

This blog was written by Fiona Ong at Shawe Rosenthal, author of our Maryland Human Resources Manual. You can find the original blog post here and their Labor & Employment Report newsletter (which is excellent) here.   NLRB Issues New (And More Balanced) Guidance on Handbook Rules ...

Guidelines for a valid no-solicitation/no-distribution policy

Guidelines for a Valid No-Solicitation/No-Distribution Policy This blog was written by Fiona Ong at Shawe Rosenthal, author of our Maryland Human Resources Manual. You can find the original blog post here and their Labor & Employment Report newsletter (which is excellent) here.   Man...

Personal hygiene in the workplace

When you took your job in HR, you knew that you would have to face some uncomfortable situations: terminations, poor performance reviews, disciplinary actions, but perhaps the worst of all is the “we need to talk about your personal hygiene” conversation. Your staff’s poor personal hygiene can ne...

Conducting internal I-9 audits

This blog is an excerpt from our book Employment Verification – An Employer’s Guide to Immigration, Form I-9 and E-Verify by David Selden and Julie Pace at The Cavanagh Law Firm. For more information, go to the Products tab above and click on "Federal" to subscribe.   For many years, an emp...

Attendance policies

Needless to say, a company can’t operate (let alone succeed) if the employees aren’t showing up to work. But how do you ensure that your workforce will consistently report for duty? One good step is having a clear attendance policy. Communicating clearly about what are acceptable reasons to miss ...

Nepotism: favoring relatives and friends in the workplace

It is not unusual for multiple members of a family to work for the same employer.  However, such situations can be troublesome if the family members are in a superior-subordinate relationship because: the relationship may give rise to favoritism or to suspicions of it the subordinate fami...

The Form I-9 has changed… Again!

Immigration enforcement is a major priority for the Trump Administration. Work site enforcement and I-9 audits and inquiries by ICE have been increasing and they will continue to increase. In addition to this, yet another new I-9 form was issued in 2017. All employers must use the new Form I-9 du...

Arizona sick day policy

Arizona sick day policy Julie A. Pace, The Cavanagh Law Firm This blog comes directly from the Arizona Human Resources Manual. If you are an hrsimple.com member, just log in and go to Chapter 21, Personnel manuals and policies. Beginning on July 1, 2017, under Arizona law, all employees ...

Vacation policies and time off

Not all employers provide employees with vacation time, but for those who do it is wise to have a clear, well-enforced policy in place to prevent confusion and help employees understand what steps need to be followed in order to use their time off. If employers decide to provide time off they nee...

Employee handbooks – getting a handle on your policies

While there may be no state or federal law requiring an employer to have a handbook, there are a number or reasons why they are in an employer’s best interest.  Usefulness. It is beneficial for there to be one definitive source on the terms of employment. If an employee ever has a question ...