OFCCP Renews Focus on Disabled Individuals, Veterans, and Military Spouses 2019-11-15T12:36:14-07:00

Posted on November 15, 2019

Last week was busy for the Office of Federal Contract Compliance Programs (“OFCCP”), the anti-discrimination watchdog that oversees the nation’s federal contractors and subcontractors. On November 8, OFCCP Director Craig Leen announced that the agency will soon begin selecting contractors for “focused reviews” of their compliance with Section 503 of the Rehabilitation Act. Section 503 bars contractors from discriminating against individuals with disabilities. The same day, the agency released a list of 500 contractors selected for an initial round of focused reviews under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (“VEVRAA”), and it issued a new directive highlighting VEVRAA’s protection of military spouses.

A “focused review” is an OFCCP compliance evaluation that is narrowly tailored and focused on specific issues. Here, OFCCP’s focused reviews will evaluate whether contractors are complying with nondiscrimination and affirmative action rules for disabled individuals and protected veterans. According to OFCCP, these reviews will include onsite visits to contractors and interviews with managers responsible for compliance – such as, for example, Human Resources personnel or ADA coordinators. OFCCP will also seek “to evaluate hiring and compensation data,” and for disability reviews, “the handling of accommodation requests.” The agency’s new directive also mandates that, during broader compliance reviews, compliance officers must evaluate contractors’ treatment of spouses of protected veterans.

Federal contractors and subcontractors should review their compliance with the agency’s affirmative action regulations for disabled individuals and protected veterans. The regulations, which OFCCP significantly revised in 2013, set specific “aspirational” benchmarks for the recruitment and hiring of disabled individuals and protected veterans, and impose an array of additional requirements on contractors. For example, under the revised regulations, which went into effect in March 2014, contractors must invite their employees to self-identify as disabled or as veterans at least every five years. It may be time for contractors to re-survey their workforce.

UPS Delivers Cautionary Tale 2017-08-08T14:56:42-06:00

Posted on August 8, 2017

By John Doran

Maximum leave policies are ubiquitous. These policies typically state that an employee who does not/cannot return from leave within a specified period (e.g. 12 months) will be discharged. Last year the EEOC issued “guidance” reminding employers that it views maximum leave policies as a violation of the ADA. Last week the EEOC settled a long-running case with UPS involving maximum leave policies. The EEOC’s lawsuit, filed in 2009, claimed that UPS’s maximum leave policy discriminated against disabled workers because it left no room for accommodation upon expiration of twelve months leave. Under the settlement, UPS agreed to pay $1.7 million to a class of workers and to create new mechanisms within the entire organization to ensure a prior legal review of any termination of an employee who has reached the end of a medical leave. Whether the EEOC is right or wrong on maximum leave policies under the ADA, it clearly litigates to enforce its position. Employers are wise to look at their leave policies to ensure they do not run afoul of the EEOC’s interpretation of the ADA.

Don’t Go Break-rooming My Heart 2015-04-17T13:44:24-06:00

Posted on April 17, 2015

By Just John

Being a hospital maintenance worker is grueling. Just ask Darrell Allen, who worked for Atrium Medical Center. His job was so taxing that he created a secret break-room for himself in one of the hospital’s air handling rooms. The break-room included a desk and chair; a refrigerator that contained raw eggs, pickles, orange juice, milk, bread, lunch meat, peanut butter, pistachio nuts, cooking oil, and cooking spray; a toaster; a griddle; a hot plate; and a skillet. When Atrium discovered the secret hiding place, Mr. Allen defended himself by explaining that he always removed his stuff before state hospital inspections. But Atrium had a rule against cooking in areas other than the kitchen (they really needed a “rule” for that?), and also banned food in any mechanical rooms. Add to this the fact that Mr. Allen was exercising his gourmet talents in a hospital air handling room, jeopardizing patient and worker safety, and you have all the ingredients for a sad end to Mr. Allen’s tale. He was fired. He sued for disability discrimination as a former heart attack victim and for age discrimination. The court burnt Mr. Allen’s claims to a crisp, awarding summary judgment to the hospital. Allen v. Atrium Med. Center, Case No. 1:13-CV-811 (S.D. Ohio April 14, 2015).

The lesson from this bizarre tale? Secret forts are super keen when you’re 6 years old and using an old blanket between dining room chairs. Not so much when you’re 60 and cooking in a hospital air handling room.

Is Any Use of Medical Info Disparate Treatment? 2014-06-18T14:28:12-06:00

Posted on June 18, 2014

By Bryan Stillwagon

If an employer administers a post-offer medical exam in accordance with the ADA and keeps the acquired medical information confidential in accordance with the ADA, may the employer then use the information without violating the ADA? In Wetherbee v. The Southern Co., No. 13-10305 (11^th Cir. June 11, 2014), the plaintiff argued that using the results of a medical test as the basis for rescinding a job offer violates the ADA, regardless of whether the candidate has a disability. The court disagreed.

The employer rescinded the plaintiff’s job offer after his required medical exam revealed that he should not operate safety-sensitive equipment until his medication regimen had been shown to be effective. Because his job offer was for a position that required work on safety-sensitive equipment, the company determined he could not perform the essential job functions. The plaintiff alleged the employer violated 42 USC Sec. 12112(d)(3)(C) by using the disclosed medical information to discriminate “on the basis of disability,” but the plaintiff admitted he could not show he was disabled. The court held that, regardless of whether the results were used “properly,” the use can be “discrimination on the basis of disability” only if the plaintiff is disabled. Beware however that there might be other ways to use information improperly under the ADA.

EEOC Targets Another “No-Fault” Attendance Policy 2014-05-14T11:00:30-06:00

Posted on May 14, 2014

By Bryan Stillwagon

On Friday, the EEOC filed a lawsuit against AutoZone targeting the company’s “no fault” attendance policy because of its negative impact on disabled employees requesting accommodations. The suit, EEOC v. Autozone, Inc., No. 1:14-cv-03385 (N.D. Ill.), alleges the company refused to grant accommodations and then fired employees who took additional time off because of their disabilities. The EEOC says AutoZone refused to allow an employee with a herniated disc to sit during portions of his shift and denied a schedule change aimed at decreasing the likelihood of another employee’s migraines. AutoZone’s attendance policy is “no fault,” meaning employees accrue “points” for absences. After a certain number of points, the employee is terminated. The EEOC alleges “points” accrued even when the employee missed work for disability-related reasons.

This case is a continuation of the EEOC’s attack on bright-line, one-size-fits-all policies. The EEOC argues that such policies ignore obligations to participate in an interactive process with the employee to determine on a case-by-case basis whether an accommodation exists that is reasonable. Of course, you also can’t compel an employee to ask for an accommodation.

Medical Marijuana Use Doesn’t “Manifest” A Disability 2013-11-06T17:53:45-07:00

Posted on November 6, 2013

By Vance Knapp

In Bailey v. Real Time Staffing Servs., Inc., No. 13-5221 (6th Cir. 2013), the employee tested positive for marijuana in a random test. He tried to explain – to the employer and to the medical review officer – that he had a “medical condition” and was “prescribed” a medication that might cause a false positive. He did not disclose that he had HIV. The employee was fired anyway.

In his disability discrimination suit, the employee argued that he was fired for “manifestation of a disability.” That’s the theory employees cite when they engage in misconduct because of a disability. For example, if an employee falls asleep at work because of a disability and the employer knows the sleeping was because of a disability, but fires the employee anyway, the employee still might have a claim for disability discrimination. Here, the Sixth Circuit ruled that testing positive for marijuana was not “manifesting-a-disability.” This employee had to prove his disability caused the termination, but he had no evidence to offer – he never told the employer he had HIV.

Medical marijuana often comes up in drug testing cases. The employees argue that firing them because they use marijuana as a medication for a disability is itself firing them for a disability. So far, this argument loses. We fire employees who come to work on controlled pain medication, even if they use it legally.

Height Impaired 2013-06-13T18:50:30-06:00

Posted on June 13, 2013

By Bill Wright

A federal district court in Arizona was a little short with an employer seeking to dismiss a disability discrimination claim at the very beginning of a lawsuit. The former employee, who stands 4’ 10”, sued for discrimination and harassment based on various protected statuses. The only status to survive the employer’s motion to dismiss was “disability” under the ADA, based on the employee’s below-“normal” height. The first issue of course was whether her height was an “impairment” under the ADA. The court acknowledged that “[h]eight is . . . not a typical impairment,” but would not go so far as to conclude that height could never, under any circumstances, be a disability. The employer and the plaintiff will have to wait through discovery to see whether the height outside the “normal” range is a disability in this particular instance. McElmurry v. Arizona Depart. Of Agriculture, No. CV-12-02234-PHX-GMS (D. Ariz. June 11, 2013).

Diabetic Corrections Officer Fired for Sleeping on the Job Entitled to Trial 2013-02-07T18:47:44-07:00

Posted on February 7, 2013

By Andy Volin

Most people would consider getting caught sleeping on the job –repeatedly – an “open and shut” case for termination. In a recent disability discrimination case, however, a diabetic corrections officer persuaded a court there was enough evidence in his favor to require a trial to decide the case.

The officer denied that he had been sleeping on the job, and his partner corroborated his story. He claimed that a photo taken of him sleeping was not authentic, because details in the background suggested that it had been taken years before. Other inconsistencies between the stories of the people who saw him sleeping were enough to support the conclusion that “the sleeping on the job” accusation was simply false and made to get rid of him.

How did that tie in to his diabetes and his disability claim? He said that he had asked for a meal break that was needed to control his diabetes, and that his supervisor had told him to wait. That was enough to assert a failure to accommodate claim under the ADA. The fact that he had diabetes and was fired was enough to claim that his termination was really disability discrimination, based on the facts that showed the “sleeping on the job” excuse could have been a bogus reason. Lee v. District of Columbia, 2013 U.S. Dist. LEXIS 13874 (D.D.C. Feb. 1, 2013).

Too Little, Too Late 2012-10-02T20:48:06-06:00

Posted on October 2, 2012

By Brooke Colaizzi

ADA: Last Minute Accomodation Request

Passing an investment advisor licensing exam was required for the job. The employee had already failed the exam four times and was about to lose his job when he suggested his failures might relate to his disability and asked for an extension of time as an accommodation.

The First Circuit Court of Appeals (which sits in Boston) held that the last-minute request was not reasonable. Instead, the request was just an attempt to avoid termination. Also, the employer had no reason to believe that an extension would allow the employee to pass the test.

The employee suffered chronic pain and atrophy in his left arm from a motorcycle accident, but had worked without requesting any accommodation. The Court bypassed the question of whether the employee was “disabled” under the ADA and focused instead on the issue of “reasonable accommodation.” In the wake of the 2008 amendments to the ADA, we expect many other courts similarly to focus on accommodation, not disability. Jones v. Nationwide Life Ins. Co., No. 12-1414 (1^st Cir. 2012).

Accommodate Despite Ability To Perform 2012-09-26T19:29:41-06:00

Posted on September 26, 2012

By Ted Olsen

A cardinal rule of disability discrimination law has been that an employer must make reasonable accommodations for a disabled employee, so that the individual can perform the essential functions of his or her job, but the employer does not have to provide accommodations for the individual’s personal convenience or benefit. Another cardinal rule in the Tenth Circuit has been that, when a disabled employee cannot perform the essential functions of his or her job, the employer must transfer the employee into any vacant position at the same or lower level relative to the employee’s existing position, for which the employee is minimally qualified. Recently, in a case of first impression, the Tenth Circuit issued a decision making significant changes to these cardinal rules. Sanchez v. Vilsack, Case No. 11-2118 (10^th Cir. Sept. 19, 2012). The Court decided in Sanchez that an employer must transfer a disabled employee into a vacant position, for which he or she is at least minimally qualified, despite the fact the employee is still able to perform the essential functions of his or her existing position, when the transfer would facilitate the employee’s medical treatment. Although medical treatment would seem to be for the employee’s personal benefit, and therefore not required, the Court held that the scope of the reasonable accommodation duty goes beyond the workplace.